Summary
In People v. Owens (28 A.D.2d 914, affd. 22 N.Y.2d 93), the defendant was compelled to take the stand and plead his privilege to specific questions.
Summary of this case from People v. ThomasOpinion
July 10, 1967
Judgment of the Supreme Court, Kings County, rendered November 18, 1966, reversed on the law and a new trial ordered as to appellant, with leave to either party to make a motion at Trial Term for a severance, if either be so advised. Defendant was convicted of grand larceny in the first degree arising out of a confidence scheme. He was indicted and tried jointly with his accomplice. After the jury had been selected and sworn, the opening statement had been made by the prosecution, and the first People's witness had testified, counsel for the codefendant Charline Brown moved for a mistrial and severance. The reason given was that Brown desired to call appellant Robert Owens as one of her defense witnesses and it was clear that Owens would plead the Fifth Amendment. The motion was denied. The People then concluded its case and codefendant Brown again moved for the same relief; the same ruling followed. Her counsel thereupon called appellant Owens to testify. Appellant's counsel then moved for a mistrial, claiming prejudice, and this was denied on the ground that Brown had the right to call any witness. Appellant in accordance with the court's order took the witness stand before the jury and was asked three questions about his acquaintance with codefendant Brown. Each time he declined to answer asserting his Fifth Amendment privilege. Unquestionably, the court was faced with conflicting rights. Section 393-a of the Code of Criminal Procedure provides: "All persons jointly indicted shall, upon the trial of either, be competent witnesses for each other the same as if not included in the same indictment." On the other hand, appellant is entitled to refuse to testify against himself or as a witness, without any presumption being created against him (U.S. Const., 5th Amdt.; N Y Const., art. I, § 6; Code Crim. Pro., § 393). Appellant did not at any time move for a severance of trial. The court in strong language endeavored to cure the disadvantage which the appellant suffered but we believe this to have been in vain. No matter how emphatic the charge and how meticulous the instruction, the prejudice and damage done to appellant when he was forced to take the stand and forced to exercise his constitutional privilege before the jury could not be washed away (see United States v. Housing Foundation of America, 176 F.2d 665; United States v. Echeles, 352 F.2d 892). He was compelled to decline to answer upon the ground that his testimony might incriminate him, a disastrous admission before the jury. Thus, the witness provisions of section 393-a yield to the higher constitutional privilege of the Fifth Amendment. The Trial Judge might have saved the situation had he permitted an examination of defendant appellant in the absence of the jury. This would have disclosed appellant's unwillingness to waive his right against self incrimination and demonstrated his uselessness as a witness. The prejudice that resulted here would have been avoided. A new trial is necessary for appellant Owens and, since the appeal of the codefendant Brown has not been prosecuted as yet, we grant leave to appellant or the District Attorney to move at trial term for a severance, if either be so advised. Christ, Benjamin and Munder, JJ., concur: Beldock, P.J., and Rabin, J., dissent and vote to affirm the judgment, with the following memorandum: In People v. Caparelli ( 21 A.D.2d 882), this court held that it was prejudicial error for the trial court to refuse to allow a defendant to call his codefendant to the stand. We there stated: "In all criminal prosecutions, the accused has the right to have compulsory process for obtaining witnesses in his favor (U.S. Const., 6th Amdt.; Civil Rights Law, § 12). As stated by the Court of Appeals: `Notwithstanding the strong evidence against defendant and the possibility or even a probability that Mrs. Jessmer would refuse to answer questions if sworn as a witness, we are of the opinion that the error in refusing to order her to be produced in court is not such a technical error as does not affect defendant's substantial rights' ( People v. Wells, 272 N.Y. 215, 216-217)." In the light of our holding in Caparelli, it is our opinion that it was not prejudicial error for the trial court herein to require appellant to take the stand, at the behest of his codefendant, particularly in view of the fact that the court promptly instructed and charged the jury that appellant's failure to testify did not create any presumption against him. While no motion for a severance was made in Caparelli prior to the calling of the codefendant as a witness, whereas, at bar, a motion for a severance was made by the codefendant, it is nevertheless significant that no motion therefor was made by appellant at bar and his attorney only moved for a mistrial after appellant took the stand. Accordingly, appellant's claim that he was prejudiced because he was called as a witness and was compelled to invoke his constitutional privilege against incrimination, should be rejected as being without merit. The judgment should, therefore, be affirmed.