Opinion
Argued December 11, 1968
Decided February 19, 1969
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, FRANCIS T. MURPHY, JR., J.
James A. Quaremba and Anthony F. Marra for appellant. Burton B. Roberts, District Attorney ( Barry L. Mendelson and Daniel J. Sullivan of counsel), for respondent.
Defendant was indicted for assault, second degree, upon a police officer and resisting a police officer in discharge of duty, a misdemeanor (former Penal Law, § 1851). After a trial he was convicted by the jury of the lesser degree of assault (third degree, a misdemeanor) and of violation of section 1851. A reformatory sentence was imposed.
There is conflicting testimony on the assault and resisting the officer, but the jury could well have found the policeman's version of the events true. The policeman spent a week in bed as a result of the attack, was on crutches for three weeks and absent from duty for a month. Defendant had lacerations of the face and scalp, a swollen lip and a tender leg.
Defendant does not argue the insufficiency of the evidence to convict him but contends he was denied a fair trial because his credibility as a witness was attacked by improper questions and because there was improper cross-examination of his character witness.
This cross-examination was directed to defendant's purported activities in selling narcotics and participation in the robbery of taxi drivers. In the latter instance two other persons were convicted but this defendant was not indicted.
The character witness, a chauffeur of the Spanish Ambassador at the United Nations, testified he knew defendant for 13 years and that as far as being a truthful and peace-loving person nobody ever said anything bad about him. Defendant's counsel left it at that.
On cross-examination, the witness was asked if he had "discussed" with members of the community the truthfulness, aggressiveness or peacefulness of defendant and he said he had and was asked: "In discussing this defendant, did you ever hear anybody say he was selling narcotics on the beach at Orchard Beach this summer?"
There was objection, a motion for mistrial, a conference at the bench and the question was allowed. The witness answered "No, sir." Then the question was asked: "Did you ever hear it discussed in the community that this defendant took part in four taxi cab stickups?" This, too, was answered "No, sir." There was similar objection and motion.
Defendant concedes in this court the right of the People to test this kind of testimony of good character by cross-examination but argues the "right should not be so exercised as to allow introduction of unfounded, speculative and highly prejudicial statements (couched in the form of questions) regarding a defendant's past".
When the defendant testified in his own behalf he was cross-examined by the District Attorney on his participation with the two persons who had been convicted in the stickup of a taxi and on the finding of keys to four taxis in a room in which defendant was staying. The scope of this was restricted by the court but questions implying defendant's participation in taxi holdups were allowed.
The rule that evolves from the cases is that questions such as these to the character witness and to the defendant himself as a witness are not error if the prosecutor asked them in good faith, that is to say, if he had some reasonable basis for believing the truth of things he was asking about.
The ultimate argument of the appellant is for a rule suggested by Wigmore for a careful control of this type of cross-examination by the Judge, and by the suggestion of Fisch in her work on evidence that the cross-examination should not be permitted "unless the trial judge has satisfied himself in the absence of the jury that the question pertains to an actual occurrence". (See 3 Wigmore, Evidence [3d ed.], § 988; Fisch, New York Evidence, § 178, p. 94.)
The leading modern case on character testimony and the cross-examination of a character witness is Michelson v. United States ( 335 U.S. 469). There, the policy problem of allowing this type of evidence at all was examined exhaustively by Justice JACKSON, including a number of New York cases, and it was held that when a defendant introduces the subject of his good character it "throw[s] open the entire subject" of his good name through cross-examination of the witnesses called as to contrary reports and rumors and by independent proof adversely affecting the reputation of defendant (p. 479). The court felt that the archaic disadvantages of the rule could be overcome by "discretionary controls in the hands of a wise and strong trial court" (p. 486).
The general rules governing what a character witness testifies to are laid down for New York in People v. Van Gaasbeck ( 189 N.Y. 408). Reputation, from the speech of people, is treated as a fact (like the fact of market value) established by witnesses in a position to have knowledge. (See, also, People v. Fay, 270 App. Div. 261, affd. 296 N.Y. 510.)
The cross-examination of defendant, when he offered himself as a witness, on facts which might adversely affect his credibility as a witness was justified on this record ( People v. Sorge, 301 N.Y. 198, 200; People v. Webster, 139 N.Y. 73, 84). There are some specific limitations. He cannot be questioned about a criminal charge on which he has been acquitted ( People v. Santiago, 15 N.Y.2d 640); nor can he be asked whether he has been indicted ( People v. Cascone, 185 N.Y. 317, 334).
But the failure of the Grand Jury to indict defendant for the taxicab robberies did not make it improper for the prosecutor to question defendant as to the underlying fact ( People v. Shivers, 21 N.Y.2d 118, 122; People v. Conroy, 153 N.Y. 174, 187).
The prosecutor explained to the Judge on the record and in the presence of defendant's counsel the exact basis of his belief that there was a "reasonable basis in fact" for the incriminating question. Reports had been received "from several parties" by a policeman, whose name was disclosed by the prosecutor, that defendant had sold marijuana cigarettes on a public beach.
Defendant's presence in a room with one of the two men convicted of robbery, in bed but fully dressed, at 2:00 A.M., immediately after one of the taxi holdups and in which room were found the keys of four taxis that had been held up, was disclosed to the prosecutor by the police.
There was, therefore, solid basis for the questions that were asked and ground on which the Judge could rule, as a matter of discretion, they were asked in good faith. They were not, as appellant suggests to this court, "unfounded" and with "no reasonable basis in fact".
The judgment should be affirmed.
The defendant, a 19-year-old Puerto Rican youth, was indicted for assault, second degree, on a police officer and of violation of section 1851 of the former Penal Law. After a jury trial, he was convicted of assault as a misdemeanor and of violation of section 1851 and a reformatory sentence was imposed.
The facts giving rise to defendant's arrest and conviction were fundamentally disputed at the trial and the key factor on this appeal is that defendant's conviction depended on the crucial question as to whether the jury would believe the police officer's version of the facts or the version given by defendant and an eyewitness called by the defendant. At the trial, defense counsel called one Lopez as a character witness and Lopez testified on direct examination that, during the time he had known the defendant, he had heard nothing which would in any way reflect adversely on defendant's character. On cross-examination, the prosecutor employed a classical technique for testing the reliability of such a character witness — he asked whether the witness, in discussing the defendant with others in the community, had ever heard anyone say that the defendant was selling narcotics on the beach at Orchard Beach during the preceding summer. Defense counsel objected to the question and unsuccessfully moved for a mistrial. After the witness had answered that question in the negative, the cross-examination continued and the witness was then asked whether he had ever heard it discussed in the community that the defendant had taken part in four taxicab holdups. Defense counsel again objected and unsuccessfully moved for a mistrial.
Defendant himself then took the stand and his direct testimony was limited to his version of the facts underlying the indictment. On cross-examination, however, the prosecutor asked the defendant a series of questions whose form and content necessarily implied his involvement in the holdups. To these questions defense counsel also took objection.
Although I recognize that a character witness can be cross-examined as to whether he has heard rumors as to particular acts of misconduct by the defendant to whose good character he testified ( People v. Laudiero, 192 N.Y. 304; People v. Fay, 270 App. Div. 261, affd. 296 N.Y. 510; Fisch, New York Evidence, § 178) and that the defendant himself can be cross-examined as to specific acts of misconduct in an effort to attack his credibility ( People v. Sorge, 301 N.Y. 198), I would recognize limitations more stringent than those which the majority of this court recognizes in this case. As long ago as the opinion of this court in People v. Malkin ( 250 N.Y. 185) this court recognized the dangers inherent in the rule which permits the prosecution to inquire into specific acts of misconduct when cross-examining a criminal defendant and also recognized the practical futility of the accompanying rule that negative answers to such questions are "conclusive" on the prosecution where "questions are permitted which are calculated by suggestion of misconduct to prejudice the jury regardless of the answer given". In the language of that opinion, "The court may not close its eyes to results which are intended to flow and do flow from the question itself." ( People v. Malkin, supra, p. 197.) In addition, I would give practical and effective force to the specific language used by this court in its opinion in People v. Sorge ( supra) to the effect that the questions asked of the defendant on cross-examination as to such acts of alleged misconduct must "have basis in fact" and must be asked by the prosecutor "in good faith". ( 301 N.Y. 198, 200, supra.) And, since the danger of prejudice to the defendant is equally present when such questions are put to a character witness on cross-examination, I see no logical basis for refusing to apply the same limitations as are applicable to cross-examination of the defendant himself. If such practical effect is to be given to the limitations set forth in Sorge, it is clear that a basis in fact cannot be established when the only basis for asking the question is rumor, surmise or suspicion and it is also clear that the prosecutor does not have the requisite "good faith" if that is the only basis upon which he is moved to ask the questions at issue. The basis presented to the Trial Judge in this case amply demonstrates that practical content must be given to conceptual limitations recited in Sorge and so prejudicially applied to this defendant. The prosecutor told the Trial Judge that he had been told by a police officer that several persons had told the officer that the defendant would "stay on a blanket at Orchard Beach and would be selling marijuana cigarettes." As a result of such information, an "undercover man was assigned to watch him on the beach" but, significantly, the prosecutor could not report even a scintilla of evidence that defendant was, in fact, engaging in the sale of such cigarettes or any other illegal activity. On this presentation, it is one thing to say that the prosecutor may ask a character witness whether he has heard any rumor as to a specific act of misconduct by the defendant; it is quite another, and different, thing to say that the prosecutor may take a rumor that is current only among members of the police department and some unnamed persons and waft it into the jury box despite the fact that he knows that the rumor has been tested by surveillance of the defendant and found to be lacking in factual support. Even more demonstrative is the prosecutor's use of the questions about the taxi robberies in cross-examining the defendant. The prosecutor, to establish a "basis in fact" and "good faith" as to these questions, told the Trial Judge that there had been four robberies of taxi drivers in The Bronx, all committed according to a particular modus operandi; that a police officer, after one such robbery, followed footsteps in the snow to a particular apartment building; that, after a similar robbery a few nights later, the same police officer went to the same building and found two brothers, one of whom fit the description of one of the participants in the taxi robbery; that defendant was found asleep, fully clothed, in the apartment occupied by these brothers; and, in the room were found a portable radio allegedly taken in one of the robberies, changers and the keys to three taxis. Additionally, and significantly on the present issue, the two brothers were indicted for the robbery but the Grand Jury refused to indict the defendant (because, according to the prosecutor, the defendant "had not been * * * riding in the taxicab"). This recital was presented and accepted as sufficient over the objection of defense counsel and the Judge instructed the jury that the evidence thereafter adduced by way of the questions as to these incidents was relevant only on the issue of credibility and that it was not in any way probative of defendant's guilt of the acts referred to. If the limitations in Sorge are to have any significance, they should be so applied in this case as to hold that the prosecution established neither a "basis in fact" nor "good faith" in asking the questions as to selling marijuana cigarettes and participating in the robbery of taxis. Clearly, this is not a case like People v. Shivers ( 21 N.Y.2d 118, 122) where we noted that "it was not error for the court to permit the District Attorney to cross-examine the defendant concerning an earlier attempted burglary, in which he was actually caught in the act, even though he had not been prosecuted therefor." (Emphasis added.) A "good faith" belief that an alleged specific act of misconduct has a "basis in fact" must be held to require more than flimsy surmise, conjecture or suspicion unless we are willing to let the very purpose for which restrictions were imposed be thwarted by the prosecution's resort to "an instrument which [it] may use not wisely but too well" (3 Wigmore, Evidence, § 983, pp. 550-551). In the face of the obvious potential for prejudice to the defendant, courts must be willing to reappraise the hallowed rules of evidence, such as the ones applied to the prejudice of the defendant in this case, in light of the realities of the trial context and especially in light of the difficulty which a lay jury must necessarily face in attempting the mental segregation of an item of evidence so that it considers that item for one limited purpose (credibility) but completely ignores that same evidence when it decides another issue (guilt of the crime charged).
It should also be realized that the relatively unrestricted use by the prosecution of such cross-examination techniques as are involved here can have a sinister and chilling effect on the defendant's decision as to whether or not he should testify in his own behalf. Faced, as this defendant was, with the choice either of pitting his own version of the facts against that of the police officer or of remaining mute and relying on the testimony of his eyewitness, he might well have foregone the opportunity to testify, especially if he had known that he would be faced with the necessity of defending himself against the insinuation of his implication in robberies and narcotics crimes as well as defending against the acts charged in the indictment. It is indeed somewhat inconsistent to enforce a rule against comment by the prosecution on the defendant's failure to testify while at the same time allowing the prosecution to impose even more prejudicial burdens on a defendant who chooses to testify by forcing him to defend himself against rumor, suspicion and surmise.
Finally, it is apparent from the increasing number of cases in which questions are raised concerning the extent of the cross-examination of criminal defendants that the entire body of evidence rules affecting this area are in need of a thorough and searching reappraisal. For all of these reasons I respectfully dissent and note that I would reverse the conviction and remit the case for a new trial.
Judges SCILEPPI, KEATING, BREITEL and JASEN concur with Judge BERGAN; Judge BURKE dissents and votes to reverse in a separate opinion in which Chief Judge FULD concurs.
Judgment affirmed.