Summary
holding that "the use of the words `reasonable certainty' in the charge on reasonable doubt, depending on the content of the charge as a whole, may have a tendency to mislead or confuse the jury," and "were improperly used in the charge in the present case"
Summary of this case from Brown v. GreeneOpinion
November 30, 1967
Judgment convicting defendant of murder in the first degree unanimously reversed, on the law and the facts, and a new trial directed. Substantial error and unfairness in the trial requires the reversal. It was unfair and improper for the District Attorney to withhold from the defendant information with respect to the statements made by the codefendant Nisbett that may have tended to exculpate the defendant. The District Attorney, during the trial, had accepted Nisbett's plea of guilty to manslaughter in the second degree and it appears that, at or prior to the time of the plea, Nisbett had stated to the police and the District Attorney that the defendant was not present at the scene of the stabbing. Although it appeared that defendant's counsel had information that Nisbett had said that the defendant was not involved, the District Attorney failed to respond to the requests of defendant's counsel on the trial that he make Nisbett's statements known to the defense. The defendant was entitled to the information so that he could determine whether or not he should call Nisbett as a witness. The District Attorney does not state whether Nisbett's statements were oral or in writing, nor what he said. There is some indication in the record that his statements were shown to the Trial Judge, but the District Attorney does not state definitely that this did occur. Having taken a very equivocal and evasive position in his brief with respect to the statements of Nisbett, the District Attorney suggests in effect that defendant's proper remedy is coram nobis. We conclude however that the conduct of the District Attorney requires a reversal of the conviction. (See Giles v. Maryland, 386 U.S. 66; Miller v. Pate, 386 U.S. 1; Brady v. Maryland, 373 U.S. 83; Thomas v. United States, 343 F.2d 49; United States v. Wilkins, 326 F.2d 135; see, also, People v. Fine, 18 N.Y.2d 162, 172 and dissenting opinion Fuld, J., p. 177, app. dsmd. and cert. den. 385 U.S. 649.) No motive for the alleged killing by the defendant was established. Although, as stated by the Assistant District Attorney in summation, motive was not an essential element to the crime as charged, the defendant was entitled to have the jury consider the absence of proof of motive in determining his guilt or innocence The court erred in denying a request by the defendant for a charge to this effect. (See People v. Dinser, 192 N.Y. 80; People v. Sangamino, 258 N.Y. 85; People v. Miller, 247 App. Div. 489.) In the course of its charge on reasonable doubt, the court stated that the proving of a case against the defendant beyond a reasonable doubt "is to say, it must be made reasonably certain that a defendant is guilty. * * * [W]here cases rest upon human memory and human recollection and human testimony, you cannot establish a case to a mathematical certainty. But it is possible to make it reasonably certain that a defendant is guilty". Upon exception being taken to the charge in this respect, the Trial Judge admitted that there was possible error and said that he would clarify the matter for the jury. But, apparently on the insistence of the District Attorney that the court had not committed error, no further instructions were given. It has been said: "The rule of reasonable certainty may be applied by juries in civil actions, because the certainty required in such actions does not exclude the existence of reasonable doubt. In a civil action it is enough that the jury be reasonably certain, by reason of a preponderance of evidence; which does not mean that they must have no reasonable doubt, no doubt founded in reason. But in a criminal action the jury may not convict because on the whole they are reasonably certain of guilt. On the contrary, to convict they must be without a reasonable doubt, even though there be a clear preponderance of evidence on the side of guilt." ( People v. Stephenson, 11 Misc. 141, 145.) In any event, the use of the words "reasonable certainty" in the charge on reasonable doubt, depending on the content of the charge as a whole, may have a tendency to mislead or confuse the jury. A majority of us conclude that the words were improperly used in the charge in the present case.
Concur — Stevens, J.P., Eager, Steuer, Capozzoli and McGivern, JJ.