Opinion
March 28, 1994
Herbert J. Lewis for defendant.
Howard R. Relin, District Attorney of Monroe County (Richard A. Keenan of counsel), for plaintiff.
This is an application by the defendant, pursuant to CPL 330.30 (1), to vacate a verdict of guilty after a jury trial convicting him of murder in the second degree, upon the ground that prosecutorial misconduct occurred during the trial which resulted in an erroneous denial of his motion for a mistrial pursuant to CPL 280.10.
A police sergeant in the course of the trial was questioned concerning her conversation with the defendant during an interview prior to his arrest. The avowed purpose of this line of questioning was to demonstrate the discrepancies between this statement and the defendant's postarrest statement as evidence of consciousness of guilt. After the sergeant had repeated part of this conversation relating to the defendant's employment, she was asked, "Did he say anything else to you?", and she replied, "Yes, in relation to that also he told me he was the subject of a police murder investigation."
Before the sergeant could complete her answer, there was an immediate objection and that objection was immediately sustained. The jury was then excused, and the defendant made a motion for a mistrial. After hearing arguments, decision was reserved, and the motion was ultimately denied. A detailed curative instruction to which the defendant contributed was then given to the jury, and all the jurors agreed that they could disregard this inadmissible testimony.
The defendant claims that the elicitation of this testimony was deliberate, and that the failure of the prosecutor to conform to the procedure delineated in People v Ventimiglia ( 52 N.Y.2d 350) should have mandated a mistrial. The defendant correctly emphasizes that at a pretrial conference the prosecutor was warned that the defendant would seek to restrict a similar conversation he allegedly had with a fellow inmate at the jail, and that this should have alerted him to the defendant's concern.
The primary response to the prosecutor is that the sergeant's answer was inadvertent.
The prosecutor argues that the answer was not the equivalent of an admission of a prior crime; that the defendant was aware of the defendant's statement from a police report and pretrial hearing and neglected to move to preclude; that the defendant explained during the trial that he was on parole and was experienced in the criminal justice system to justify his false explanations to the police; that such testimony should be admissible to refute the defendant's assertion that his written statement to the police was involuntary; and that at a postverdict hearing six jurors confirmed that the jury had adhered to the court's curative instruction.
Resort to another analysis made it unnecessary to consider the matters advanced by the prosecutor in expurgation other than by reference in the following footnotes.
This argument has minimal merit (see, People v Rackis, 195 A.D.2d 893; People v Wheeler, 114 A.D.2d 688).
This may be a somewhat meritorious argument (see, People v Abdullah, 134 A.D.2d 503, lv denied 71 N.Y.2d 965).
This argument likewise may be meritorious (see, People v Messina, 196 A.D.2d 557; People v Simon, 180 A.D.2d 866, lv denied 80 N.Y.2d 838).
This is an untenable argument (see, People v Folk, 176 A.D.2d 754, lv denied 79 N.Y.2d 947).
A postverdict hearing was held pursuant to CPL 330.40 (2) (f) to investigate an allegation that a male juror prior to jury selection had opined the defendant was guilty (see, People v Tokarski, 178 A.D.2d 961); all six male jurors authenticated that the jury did not discuss the objectionable statement. This may be an acceptable argument (see, People v Graham, 181 A.D.2d 504, lv denied 80 N.Y.2d 831, 81 N.Y.2d 886; People v Barranco, 174 A.D.2d 343, 345 [dissenting opn]).
Because of the disparity between the defendant's allegation that the sergeant's testimony was deliberate, and the prosecutor's allegation that it was inadvertent, a hearing was conducted to resolve this factual dispute.
Appellate courts have been able to glean inadvertence from the record (e.g., People v Simon, 180 A.D.2d 866, lv denied 80 N.Y.2d 838, supra; People v Wheeler, 114 A.D.2d 688, supra).
At the hearing the sergeant testified that the prosecutor had, prior to trial, discussed with her three areas concerning her conversation with the defendant; that these areas were the defendant's employment, his relationship to the victim, and any information he might have regarding the murder; that there were potentially damaging remarks by the defendant she was warned to avoid; that she was never instructed either to repeat, or not to repeat, this particular statement; and that she answered the question posed as she did, because it was the continuation of the sentence in which the defendant related his employment.
This is not fatal to the prosecutor's position (see, People v Price, 149 A.D.2d 754, lv denied 74 N.Y.2d 667), although such an admonition would have been preferable (see, People v Vann, 182 A.D.2d 655, lv denied 80 N.Y.2d 910, 81 N.Y.2d 894, 81 N.Y.2d 977).
The prosecutor testified in basically the same fashion; he added that since he had already questioned the sergeant in the area of the defendant's employment and relationship to the victim, he expected the answer to the inappropriate question to be related to the defendant's knowledge of the incident; and he emphatically confirmed that he did not anticipate or want the defendant's statement to be divulged.
The testimony of the sergeant and the prosecutor was found to be credible.
This finding eliminates any violation of People v Ventimiglia ( 52 N.Y.2d 350, supra; see, People v Heath, 175 A.D.2d 562).
The testimony of the sergeant that the defendant stated to her that he had been investigated in relation to a prior homicide was extremely prejudicial as this defendant was on trial for a similar crime (see, People v Carter, 195 A.D.2d 566, lv denied 82 N.Y.2d 752; People v Heath, 175 A.D.2d 562, supra). However, instead of a court invoking the drastic remedy of a mistrial because of such reference (see, People v Barranco, 174 A.D.2d 343, supra; People v Stevenson, 59 A.D.2d 972), under the proper circumstances an appropriate remedy could be the striking of the offensive testimony and a curative instruction (People v Blasich, 73 N.Y.2d 673; People v Santiago, 52 N.Y.2d 865).
There are four levels of responses to questions which can cause prejudice to the defendant by manifesting criminal conduct of the defendant other than that for which he is being tried.
The first category is the answer given to a prosecutor's question which is totally spontaneous and which has no relation to the query. Cases exemplifying this type of response are: People v Brown ( 193 A.D.2d 612, lv denied 82 N.Y.2d 714 — defendant was charged with drug possession and prosecution witness testified that defendant was "target" of police surveillance); People v Vann ( 182 A.D.2d 655, lv denied 80 N.Y.2d 910, 81 N.Y.2d 894, 81 N.Y.2d 977, supra — defendant was charged with robbery and the complainant testified to a threat made to him by the defendant in which he referred to the defendant's prior conviction for "killing someone"); People v Newton ( 135 A.D.2d 1115, lv denied 71 N.Y.2d 971 — defendant was charged with attempted rape and complainant remarked that she knew that the defendant had killed his brother).
The cases in this area are legion, but the ones selected have obvious relevance to this situation.
The second category is the answer given to the prosecutor's question which is in response to the question but which is not the answer expected. Illustrative of these types of answers are: People v Rotundo ( 194 A.D.2d 943, lv denied 82 N.Y.2d 726 — the informant in response to the prosecutor's question as to how he knew the defendant replied "drug dealer"); People v Guise ( 179 A.D.2d 1027, lv denied 79 N.Y.2d 1001 — police officer testified on direct examination that when he asked the defendant whether he understood his constitutional rights, the defendant responded "Yes. I have been arrested before"); People v Price ( 149 A.D.2d 754, 755, lv denied 74 N.Y.2d 667, supra — prosecutor asked investigator what he and the defendant talked about at the time of the defendant's statement, and he answered "Life in general, his life with his wife * * * his life in prison").
The third category is the answer given to a prosecutor's question which is in response to the prosecutor's question and which is the answer expected. Examples of these types of answers are contained in People v Johnson ( 194 A.D.2d 870, lv denied 82 N.Y.2d 721 — there was testimony that the defendant removed a number of small packages of cocaine from his pocket when two police informants purchased cocaine from the defendant in "controlled buy" situation); People v Fischman ( 191 A.D.2d 841, lv denied 81 N.Y.2d 1013 — prosecutor showed cooperating coconspirator fraudulent invoices covering 44 patients [six more than included in indictment] to substantiate 38 bogus claims of the defendant); People v Ashford ( 190 A.D.2d 886, 887, lv denied 81 N.Y.2d 1069 — prosecutor asked confidential informant if he had ever purchased drugs from the defendant in the past and the answer was "Yes, I have").
In this case the defendant rejected the court's offer to give a curative instruction to the jury.
The appellate courts in all of the cases in these three categories held that the defendants' motions for mistrials were properly denied, and that the subsequent curative instructions were sufficient to alleviate any prejudice to the defendant.
The fourth, and most egregious, category is the answer given to a prosecutor's question where the prosecutor is in violation of a court order not to ask the question. The cases which illustrate this situation are: People v Jiminez ( 200 A.D.2d 889 — a prosecution witness testified that the defendant had used drugs in contravention of a prior ruling disallowing such inquiry); People v Rodriguez ( 194 A.D.2d 316, lv denied 82 N.Y.2d 725 — the prosecutor questioned the defendant whether he had ever possessed a controlled substance contrary to a pretrial ruling, and the defendant acknowledged that he had); People v Barranco (supra, at 344 — after parties agreed 11 vials of cocaine would not be mentioned by any witness, the prosecutor asked the arresting officer if he had recovered "anything of an evidentiary nature," and the officer responded "one tin foil of cocaine and eleven vials").
This case, although it involves a defendant as a witness, represents an analogous situation, and is therefore relevant on this issue.
Even these serious breaches did not produce automatic mistrials. In the first case, the curative instruction was found adequate to correct the error; in the second case, the fact that the Court cut the prosecutor off almost immediately was deemed sufficient redress; only in the third case was the testimony found to be so prejudicial that it could not be eradicated by a curative instruction.
The dearth of cases in which a mistrial was actually declared is probably due to the fact that they are "infrequently granted inasmuch as the cost, literally and legally, is very great" (Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A [1982], CPL 280.10).
The sergeant's response here equates to a combination of the answer in the second and third categories. It may not have been the answer that the prosecutor expected, but it was an answer that the prosecutor should have expected due to the nonspecific nature of the question, and his awareness that the reference to the homicide investigation was included in the same sentence as the defendant's employment reference.
Nevertheless, an incriminating answer in the second and third categories does not require that a motion for a mistrial be granted, and can be remedied by striking the answer and giving the jury a curative instruction.
Since that was the procedure followed in this case, the defendant's motion for a mistrial was properly rejected, and the defendant's present application to vacate the verdict must be denied.