People v Womack
Annotate this CaseDecided on December 5, 2006
Supreme Court, Bronx County
The People of the State of New York,
against
Ronald Womack, Defendant.
3456/2004
For the People of the State of New York
Honorable Robert T. Johnson
District Attorney of Bronx County, New York
By: David E. Greenfield, Esq.
Assistant District Attorney
For Ronald Womack
William B. Flack, Esq.
Dominic R. Massaro, J.
In this homicide trial, Defendant seeks to redact the portion of his videotaped statement in which he was asked why he did not contact the police following the shooting on the ground that it violates his constitutional right to remain silent. The People counter that such pre-trial silence is admissible as it relates to Defendant's consciousness of guilt. Defendant also moves to preclude other portions of the videotaped statement which he claims are unduly prejudicial and refer to prior statements precluded pursuant to CPL § 710.30 (1) (a). The motion is denied.
Factual Setting
On July 13, 2004, Defendant was arrested for causing the death of his cousin Carnell Harris on May 26, 2004. After being read his Miranda rights, Defendant provided both written and videotaped statements in which he claimed that he accidentally shot Mr. Harris. Following a Huntley hearing, in which the Court found both statements admissible, but precluded the admission of three prior statements due to the People's failure to provide notice pursuant to CPL § 710.30 (1) (a), Defendant moves to have selected portions of the videotaped statement redacted, namely questions relating to his conduct following the shooting and prior to his arrest. In this context, Defendant was asked: if he called the police after the shooting; if he called for an ambulance after the shooting; if he informed any family members about his conduct when he spoke to them during this interval; and if he ever returned to the neighborhood in which the victim lived. Defendant also moves to redact the portion of the videotaped statement in which he states that he did not attend the victim's funeral because he had to go to Housing Court in order [*2]to avoid being evicted from his place of residence on the ground that implicates an uncharged bad act and is unduly prejudicial. Lastly, Defendant moves to redact the portion of the statement in which he states that, prior to his arrest, he made a statement to the People indicating that he was not involved in the victim's death on the ground that the prior statement was precluded due to the People's failure to provide notice pursuant to CPL § 710.30 (1) (a).
Discussion
Both the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment and Article One, Section Six of the New York State Constitution provide that no person shall be compelled in any criminal case to be a witness against himself. However, it is well settled that "[t]he Fifth Amendment privilege against compelled self-incrimination is not self-executing . . . [and] may not be relied upon unless it is invoked in a timely fashion." Roberts v. United States 445 U.S. 552, 559, 100 S. Ct. 1358, 1364, 63 L. Ed. 2d 622. Indeed, the Court in Roberts, supra at 557-58, 1363 explained that:
Concealment of crime has been condemned throughout our history. The citizen's duty to "raise the hue and cry' and report felonies to the authorities" Branzburg v. Hayes, 408 U.S. 665, 696, 92 S. Ct. 2646, 2664, 33 L. Ed. 2d 626 (1972), was an established tenet of Anglo-Saxon law at least as early as the 13th century. 2 W. Holdsworth, History of English Law, 101-02 (3rd ed. 1927); 4 id., at 521-22; see Statute of Westminster First, 3 Edw. 1, ch. 9, p. 43 (1275); Statute of Westminster Second, 13 Edw. 1, chs. 1, 4, and 6, pp. 112-115 (1285). The first Congress of the United States enacted a statute imposing criminal penalties upon anyone who, "having knowledge of the actual commission of [certain felonies,] shall conceal, and not as soon as may be disclose and made known the same to [the appropriate] authority. . . ." Act of Apr. 30, 1790, § 6, 1 Stat. 113. Although the term "misprison of felony" now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination, . . . the criminal defendant is no less than any other citizen is obliged to assist the authorities.
Subsequently, in People v. Jenkins, 447 U.S. 231, 236 fn.2, 238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980), the Supreme Court explained that, although they did "not consider whether or under what circumstances pre-arrest silence may be protected by the Fifth Amendment, . . . the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a criminal defendant's credibility." Nevertheless, the Court concluded its opinion in Jenkins, supra, at 240-41, by opining that:
Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situation in which silence is viewed as more probative then prejudicial. We merely conclude that the use of prearrest silence to impeach a defendant's credibility does not violate the Constitution.
Regarding the former portion of Jenkins, supra, however, in his concurring opinion, Justice Stevens stated that "the privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak" because there is a fundamental difference between "a defendant's decision not to testify at [*3]his own trial [and ] . . . his silence in a precustody context." Jenkins, supra, at 241 (Stevens, J., concurring). Justice Stevens further explained that:
The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police. We need not hold that every citizen has a duty to report every infraction of law that he witnesses in order to justify the drawing of a reasonable inference from silence in a situation in which the ordinary citizen would normally speak out. When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent.
Jenkins, supra, at 243-44 (Stevens, J., concurring).
Justice Stevens concluded by opining that the question of admissibility of pre-arrest silence "turns on the probative significance of that evidence and presented no issue under the Federal Constitution. . . . Under my approach, assuming relevance, the evidence could have been used not only for impeachment but also in rebuttal even had petitioner not taken the stand." Jenkins, supra, at 244, 244 fn. 7 (Stevens, J., concurring).
Justice Stevens concurring decision was soon thereafter adopted in United States v. Robinson, 523 F. Supp. 1006, aff'd 685 F.2d 427 (2nd Cir. 1982). In that case, in which the defendant was found guilty of violating 18 U.S.C. § 491 (b), commonly known as knowingly offering, exposing and keeping with intent to furnish counterfeit United States currency, he attempted to pay a fine at the Criminal Court of the City of New York in Brooklyn with counterfeit currency and when it was discovered, upon placing the currency under a counterfeit currency detector light, the clerk stated to defendant, in sum and substance, "now give me real money," to which defendant did not respond verbally, but instead, gave different currency to the clerk. The prosecution referred to Defendant's failure to respond to the Clerk's statement as behavior inconsistent with his lack of knowledge because if he were to learn at that time that the currency was counterfeit, he would have stated something and contested the clerk's conclusion. Defendant contented that no burden could be borne against him for not reacting because he had no obligation or duty to do so and, because a court officer was directly behind hi, his best course of action was to say nothing and to attempt to resolve the matter later. The court held that:
[W]hat is contested here is no more than the government's suggested inference from appellant's silence in a situation which, arguably, would have caused the average innocent citizen to reach in some way other than did appellant. . . There is no question that appellant saw the cashier return the four notes to him and heard her request their replacement by "real money." Indeed, appellant demonstrated he understood the cashier by his simple response of returning to his wallet and choosing four genuine bills. Appellate did not contest the cashier's implication nor even request an explanation. He did not express any of the surprise that might be expected of an innocent citizen who learns that he has been the victim or dupe of criminality. The Court . . . could reasonably conclude that in this situation the average man would not have acted as appellate did. Accordingly, the suggested inference from appellant's reaction was probative and its consideration not improper.
[*4]Robinson, supra, at 1011-12
However, based on this concluding portion of the majority in the Jenkins, supra, decision, the Court of Appeals in People v. Conyers, 52 NY2d 454, 458-60 (1981), held that, based on the fact that "[e]vidence that is highly prejudicial but of low probative worth has traditionally been excluded from criminal trials, . . . [and its] judicial responsibility to formulate rules of evidence to protect the integrity of the truth finding process, . . . evidence of an individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth . . . and because the potential for prejudice inherent in such evidence outweighs its marginal probative worth, we conclude that use of such evidence for impeachment purposes cannot be justified in the absence of unusual circumstances."
Following, Conyers, the First Department rendered its decision in People v. Pressley, 93 AD2d 665 (1st Dept. 1983), the case upon which Defendant primary relies. In that case, the defendant's conviction was reversed due to prosecutorial misconduct, including repeatedly attacking the defendant's veracity, trying "to portray him as a habitual liar, . . . attempting to depict the defendant as a mental defective, a welfare sponger, an alcoholic, a molester of young girls, . . . [and ] an inveterate liar whose entire testimony was a fabrication." Pressley, supra, at 669-70. In addition, the prosecutor:
made frequent comments on the defendant's failure to turn himself in to the authorities despite the fact that the prosecution may not impeach an individual for his prearrest silence. . . . A defendant is under no greater an obligation to incriminate himself by voluntarily contacting the police than he is be declining to making statements when confronted by law enforcement officials. . . . The District Attorney's persistent references [eight cited by the Court] to defendant failure to communicate with the police and to place himself in their custody or both could have been intended only for the sole purpose of inflaming the passions of the jury so that they would summarily reject the defendant's effort to represent himself as a simple man, motivated primarily by fear and lack of sophistication, acting in self-defense.
Pressley, supra, at 669.
However, following the decisions in Conyers, supra, and Pressley, supra, the Court of Appeals rendered its decision in People v. Davis, 61 NY2d 202 (1984). In that case, evidence of the defendant's prearrest silence was admissible because:
In Conyers, it was undisputed that defendant stood silent at the time of arrest. We held that because defendant's silence in those circumstances was ambiguous, evidence of such silence was inadmissible to impeach his later exculpatory testimony. By contrast, here the evidence of defendant's postarrest silence came in without objection, and a key issue is whether defendant was indeed silent at the time of arrest. The prosecution contended that defendant made inculpatory statements. Defendant himself put the question of his silence in issue by testifying that he said nothing to the police at his arrest, thereby disputing the prosecution testimony. The credibility of the testimony of defendant and of the arresting officers on this point was comment upon in closing argument by counsel for both sides. This is not a case, like Conyers, where the prosecution tried to use evidence of the fact of a defendant's postarrest silence against him by contending that such silence itself renders a later exculpatory version of events incredible. Here the defendant testified as to his postarrest silence, contradicting the prosecution witnesses, and the prosecutor attacked the veracity of defendant's testimony upon summation. In such a [*5]situation, the prosecutor's statements on summation about whether defendant was or was not silent at the time of his arrest concerned a key issue of fact.
Davis, supra, at 206-07.
Likewise, in People v. Kanelos, 107 AD2d 764, 765 (2nd Dept. 1985), evidence was allowed to be adduced by the People establishing that after Defendant shot the victim, "[h]e did not stop the vehicle to ascertain the mortally wounded victim's condition, and refused to take him to a hospital. Instead he abandoned the still-breathing victim in the snow in a deserted area."
By way of contrast, in People v. DeGeorge, 73 NY2d 614 (1989), the defendant and others were in a bar where a shooting had just occurred. The first officers to arrive asked general inquiries of the people present, however, no one, included the defendant responded. At trial, "[t]he People, in an attempt to impeach defendant's claim that the shooting was an accident, and to help prove an essential element of the crime charged, . . . introduced testimony that he remained silent and sat at the bar with a drink in front of him shortly after the incident . . . [and] did not respond to his general inquiry . . . [or] Who had the gun?', Who shot him?'" DeGeorge, supra at 617. The People also introduced evidence that the defendant did not approach or inform the police about the shooting or telephone the police or request someone to do so after this incident that the defendant alleged was an accident. In holding that this use of the defendant's prearrest silence to impeach him and to use as direct evidence of his guilty violated the State's "common-law rules of evidence," the Court of Appeals held that:
In most cases it is impossible to conclude that a failure to speak is more consistent with guilty than with evidence. . . . To be distinguished are those limited cases in which evidence of silence has been admitted to impeach the credibility of a defendant who takes the stand because the circumstances justify the inference that the evidence is more consistent with guilt that innocence.
DeGeorge, supra, at 619.
The Court of Appeals further explained that, in this case, there are doubts as to the probative value of the defendant's pre-arrest silence because the police questioning "was not directed at any particular person at the scene and no direct statement or implied accusation was made to defendant that would naturally result in protest if untrue, other people at the bar with defendant did not reply to the police officer's general inquiries either, . . . defendant was not under any duty to speak," and there was no evidence establishing that the defendant heard or understood the questions. DeGeorge, supra, at 620.
However, in DeGeorge, supra, the Court of Appeals reaffirmed its prior holding in People v. Rothschild, 35 NY2d 355 (1974), as a proper use of prearrest silence. In that case, the defendant was a police officer who attempted to receive a bribe and, during his cross-examination, was asked if he had informed any superior of the alleged bribe offer made to him or that he was attempting to obtain such an offer in order to arrest the individual who made the bribe, which was his defense. In holding this questioning proper, the Court of Appeals explained that:
Here was are presented only with the question of whether non-utterances, or silence, may be used against the defendant on cross-examination, when such silence is patently inconsistent with the defense asserted, and there is a patent obligation to speak. We also note with interest [*6]other holdings which have approved inquiry upon cross-examination relating to a defendant's silence, before and after his arrest, wherein somewhat similar inconsistencies were present, as bearing on his credibility (United States ex rel. Burt v. State of New Jersey, 475 F.2d 234; Agnellino v. State of New Jersey, 493 F.2d 714). We conclude that in the posture of this case the defendant's silence may be the proper subject of cross-examination. The defendant's testimony relating to the critical events was diametrically inconsistence with that produced by the prosecution thus creating the question of his credibility to be the central factual issue in the case. The natural consequence of his status as a law enforcement officer would require him to promptly report any bribe or attempted bribe to his superiors, and certainly protest and reveal such an alleged scheme after his arrest to them, and to his fellow officers as well.
Rothschild, supra, at 360-61.
The Second Department case of People v. Economy, 156 AD2d 750 (2nd Dept. 1989) is very analogous to the present case. In that case, the trial court denied defense counsel's request to redact a videotaped statement of the defendant in which he invoked his right to counsel. Rather, the court issued a limiting instruction in which it instructed the jury not to infer anything from the defendant's invocation of his right to counsel. Similarly here, if there is any remedy, the Court may want to instruct the jury "not to infer anything from Defendant's pre-arrest silence," or that "Defendant's pre-arrest silence is not automatically to be considered evidence of his consciousness of guilt, but rather, there may be many innocuous reasons for such silence."
Moreover, in this case, at the beginning of both his written and videotaped statement, Defendant explicitly waived his right to remain silent and, thus, did not "avail[] himself of the safe-harbor of silence promised in the Miranda warnings. This is similar to the situation present in United States v. Aisabor, 5 Fed.Appx. 13 (2nd Cir. 2001), in which in a similar statement, the defendant responded to a question about having been previously deported that was at odds with his claim at trial that he had not been deported for an entirely different reason, which was not provided in that statement. Therefore, because the defendant did waive his Miranda warnings and chose to give a statement, which ultimately was incompatible with his defense at trial, it was unlike Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), in which a defendant's rights were violated because he chose to invoke his right to remain silent upon being read his Miranda warnings and was later impeached by such silence due to the suggestion by the prosecutors that if his defense were true, he would have mentioned it instead of invoking his right to remain silent.
Conclusion
Prearrest silence is not governed by the Fifth Amendment. Doyle, supra, does not apply; instead, "our common-law rules of evidence" (DeGeorge, supra, at 618), wherein a court must determine the admissibility of such evidence by weighing the probative value against the prejudicial effect, is controlling. Thus, as to the entirety of relief sought by Defendant on this motion, it is
ORDERED, that the motion is denied.
The foregoing constitutes the decision and opinion of the Court.
Dated: Bronx, New York
December 5, 2006 [*7]
DOMINIC R. MASSARO,
Justice of the Supreme Court
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