People v. Wise

CourtNew York Court of Appeals
Citation385 N.E.2d 1262,46 N.Y.2d 321,413 N.Y.S.2d 334
Parties, 385 N.E.2d 1262, 14 A.L.R.4th 666 The PEOPLE of the State of New York, Appellant, v. Gregory WISE, Respondent.
Decision Date27 December 1978
Eugene Gold, Dist. Atty. (Julian L. Kalkstein, New York City, of counsel), for appellant

COOKE, Judge.

We hold that a statement taken in violation of the Miranda rule * may properly be used to impeach a defendant's credibility where the statement tends to prove a version of the facts contrary to that given in the defendant's trial testimony.

Late on the night of January 26, 1973, Albert Jenks was shot to death while sitting at a kitchen table in apartment 1D, 281 Dumont Avenue, Brooklyn. A preliminary investigation undertaken by Detective John Grosso pointed to defendant Gregory Wise as a prime suspect. Following a more detailed inquiry, Wise was arrested and accused of having committed the murder. At trial, defendant took the stand and related his account of the events transpiring on the night of the fatality. When the shooting occurred, defendant testified, he was in the hallway outside apartment 1D, having just departed from another apartment, that of his cousin, in the company of Hank Williams. Seconds before the murder, Williams, who earlier in the evening had brandished a gun in front of defendant, entered apartment 1D. By this testimony, defendant suggested that Williams was responsible for the homicide.

On cross-examination, the prosecution sought to question defendant as to statements allegedly made by him at the police station to a Detective Martin. Earlier, these statements had been ruled inadmissible under Miranda. Nonetheless, the Trial Judge, overruling defendant's objection, permitted the line of questioning to continue:

"Q Did there come a time when you were at the 77th Police Precinct on the 27th of January 1973, that Detective Anthony Martin accompanied you to a men's room?

"A Possibly.

"Q Did you have a conversation with him?

"A Not that I can remember.

"Q Did he say to you words to this effect, 'How could a guy like yourself, a Vietnam Vet, get involved in something like this?'

"Q And did you answer that question?

"Q Did you say to him, 'I don't know, the gun must have had a hair trigger. It went off accidentally, or it just went off' words to that effect?

"A No.

"Q You deny that; you deny saying that?

"A Yes, sir."

To rebut the defendant's denial, the People called Detective Martin as a witness. Martin stated that defendant had in fact made the "hair trigger" remark attributed to him by the District Attorney. After the officer left the stand, the court charged the jury that his testimony was to be considered only on the issue of defendant's credibility. Subsequently, the jury convicted defendant of the murder.

Finding the cross-examination of defendant and the rebuttal testimony of Martin improper, a divided Appellate Division reversed the conviction and ordered a new trial. In substance, the majority reasoned that, since defendant's direct testimony "virtually excluded all reference to Detective Martin" (60 A.D.2d, at p. 922, 401 N.Y.S.2d at p. 579), it was error to allow cross-examination concerning statements made to the officer. As to the rebuttal evidence given by Martin, the Appellate Division concluded that the "hair trigger" cross-examination was collateral and that therefore defendant's answers were not subject to contradiction by the People. We disagree with both branches of this analysis.

The rules governing impeachment of witnesses are deeply rooted in our adversary system. That system, premised upon a "bi-partisan presentation" of evidence in judicial proceedings, provided the impetus for the development of techniques whereby a party could test the credibility of his opponent's witnesses (see, e. g., 3 Wigmore, Evidence (3d ed.), § 875). Credibility is a many faceted concept, of course, requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable (see McCormick, Evidence (2d ed.), § 33, p. 66, n. 1). While it might be accurate to say that no one factor predominates, there are two fundamental considerations in evaluating whether a particular witness is speaking the truth: the honesty of the witness, and his ability to recall details. Especially adapted to test these important characteristics is the device commonly referred to as impeachment by "prior inconsistent statement" (see 3 Wigmore, Evidence (3d ed.), § 1017, p. 685).

The law pertaining to prior inconsistent statements is well developed, having originated at early common law (see, e. g., Langhorn's Trial, 7 How.St.Tr. 451, 462) and having been refined over the intervening decades (see, e. g., People v. Bornholdt, 33 N.Y.2d 75, 88-89, 350 N.Y.S.2d 369, 379-381, 305 N.E.2d 461, 468-469). Thus, the elements of the rule are easily stated: "If a proper foundation is laid, a party may show that one of his adversary's witnesses has, on another occasion, made statements which are inconsistent with some material part of his present testimony" (Richardson, Evidence (10th ed. Prince), § 501, p. 486). To set the stage for the prior inconsistency, the questioner must first inform the witness of the circumstances surrounding the making of the statement, and inquire of him whether he in fact made it (e. g., Larkin v. Nassau Elec. R. R. Co., 205 N.Y. 267, 269, 98 N.E. 465, 466; see 3 Wigmore, Evidence (3d ed.), §§ 1025-1029; McCormick, Evidence (3d ed.), § 37). Once properly admitted, the previous statement traditionally might be used only to affect credibility (e. g., Richardson, Evidence (10th ed. Prince), § 501, pp. 486-487), but under a modern view of the hearsay rule adopted by some authorities it is admissible as evidence in chief (e. g., McCormick, Evidence (2d ed.), § 251; 3 Wigmore, Evidence (3d ed.), § 1018, pp. 687-688; contra CPL 60.35, subd. 2).

Primarily at issue here is whether defendant's previous utterance was sufficiently inconsistent with his trial testimony to warrant its use on cross-examination. From earliest common-law days, a prior statement was admissible for impeachment purposes even though it did not directly contradict the witness' testimony (e. g., Foster v. Worthing, 146 Mass. 607, 16 N.E. 572; 3 Wigmore, Evidence (3d ed.), § 1040). Our case law accords with this established precept. In Larkin v. Nassau Elec. R. R. Co. (205 N.Y. 267, 269, 98 N.E. 465, 466, Supra ), for example, we emphasized: "Nor need there be a direct and positive contradiction. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts." More recent cases, too, reiterate and apply the rule in this fashion (e. g., People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 379, 305 N.E.2d 461, 468, Supra ; see People v. Miles, 23 N.Y.2d 527, 543-544, 297 N.Y.S.2d 913, 925-926, 245 N.E.2d 688, 696-697, cert. den. 395 U.S. 948, 89 S.Ct. 2028, 23 L.Ed.2d 467; People v. Johnson, 27 N.Y.2d 119, 122-123, 313 N.Y.S.2d 728, 730-732, 261 N.E.2d 644, 645-647, cert. den. 401 U.S. 966, 91 S.Ct. 981, 28 L.Ed.2d 248). Indeed, a more rigorous rule requiring direct contradiction would be at odds with the purpose underlying use of prior inconsistents, since such statements are admitted principally to assist the jury in its fact-finding role e. g., McCormick, Evidence (2d ed.), p. 69). In case of doubt, therefore, the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned the impeachment evidence. Applied in this fashion, the law of previous contradictory statements will advance rather than impede the truth-seeking process.

Measured against these standards, the cross-examination of defendant was proper. Upon taking the stand, defendant recited a detailed account of his activities on the night of the shooting. Included were statements to the effect that he was in the hallway and not in apartment 1D at the time of the incident, and that he observed Williams handling the gun soon after it was fired. Standing in stark contrast to this testimony is defendant's "hair trigger" remark. That prior utterance tends to prove that defendant was present in the room when the decedent was killed and that defendant rather than Williams possessed and discharged the weapon. Although the "hair trigger" statement may not directly conflict with defendant's trial testimony, it does tend to establish a differing version of the facts. Under seasoned impeachment principles, then, defendant's comment was properly used to affect his credibility.

Relying upon Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 and People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727, defendant nonetheless contends that since he did not testify as to the conversation with Officer Martin, he did not "open the door" to cross-examination concerning statements made during that conversation. Nothing contained in these cases, however, detracts from our analysis. True, defendant by his direct testimony must "open the door" to impeachment; otherwise such cross-examination would be impermissible (People v. Rahming, 26 N.Y.2d 411, 418, 311 N.Y.S.2d 292, 298, 259 N.E.2d 727, 732, Supra; People v. Miles, 23 N.Y.2d 527, 542-545, 297 N.Y.S.2d 913, 924-926, 245 N.E.2d 688, 696-697, Supra ). But this is merely another way of saying that there must be an inconsistency between the trial testimony and the previous statement. Defendant need not testify with respect to the conversation to create such a contradiction. So long as defendant recounts the events to which the prior inconsistent statement relates, he has opened the door to impeachment (e. g., People v. Miles, supra, at pp. 543-544, 297 N.Y.S.2d at pp. 924-926, 245 N.E.2d at pp. 696-697; People v. Johnson, 27 N.Y.2d 119, 122-123, 313 N.Y.S.2d 728, 730-732, 261 N.E.2d...

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