Opinion
No. 42.
Argued February 19, 2004.
Decided April 6, 2004.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 1, 2003. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Renee A. White, J.), which had convicted defendant, upon a jury verdict, of robbery in the first degree.
People v. Massie, 305 AD2d 116, affirmed.
Center for Appellate Litigation, New York City ( Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant. The trial court violated appellant's due process right to a fair trial when it erroneously held that questioning the eyewitnesses about the circumstances surrounding the photo identification procedures would open the door to admit the constitutionally suppressed lineups as direct evidence of guilt. The admission of the lineups would not have been necessary to rebut any unfair prejudice to the People, and the defense was not seeking to take extraordinary advantage of the fact of suppression. ( Delaware v. Van Arsdall, 475 US 673; Davis v. Alaska, 415 US 308; Pointer v. Texas, 380 US 400; People v. Hudy, 73 NY2d 40; Chambers v. Mississippi, 410 US 284; United States v. Wade, 388 US 218; People v. Fernandez, 82 AD2d 922; People v. Burts, 156 AD2d 1010; People v. Gonzalez, 145 AD2d 923, 73 NY2d 1015; People v. Gaddy, 115 AD2d 658; People v. Mosley, 110 AD2d 937.)
Robert M. Morgenthau, District Attorney, New York City ( Sylvia Wertheimer and Susan Gliner of counsel), for respondent. Defendant's arguments before the trial court were not made with sufficient specificity to preserve his present claim for appellate review. In any event, the disputed evidentiary ruling was consistent with the balance of values underlying the exclusionary rule. ( People v. Mahone, 206 AD2d 263; People v. Robinson, 88 NY2d 1001; People v. Waters, 90 NY2d 826; People v. Reed, 84 NY2d 945; People v. Davidson, 98 NY2d 738; People v. Padro, 75 NY2d 820; People v. Shabazz, 99 NY2d 634; People v. Melendez, 55 NY2d 445; People v. Rojas, 97 NY2d 32; United States v. Gambino, 59 F3d 353, 517 US 1187.)
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
OPINION OF THE COURT
The issue here is whether Supreme Court correctly applied the rule that otherwise inadmissible evidence may become admissible where the adverse party has "opened the door" to it by offering evidence, or making an argument based on the evidence, which might otherwise mislead the factfinder ( People v Melendez, 55 NY2d 445; People v. Rojas, 97 NY2d 32). In this case, a witness to a robbery identified defendant as the robber on two occasions before trial; the prosecution conceded that evidence as to both pretrial identifications was inadmissible. Supreme Court held that, if defendant chose to cross-examine the witness about the first of the two identifications, the door would be opened to evidence of the second. We hold that Supreme Court did not abuse its discretion.
Facts
A McDonald's restaurant was robbed at gunpoint on October 10, 1998. There were three witnesses to the robbery: Alloma Stewart, the cashier, Teodora Castro, the store manager, and Penelope Gamble, a customer.
On October 16, 1998, Stewart and Castro selected defendant's picture from a number of computer images they viewed at the police station. Stewart and Castro viewed the images together, with no police officer present, and discussed their selection of defendant's photograph with each other. Stewart testified at a pretrial hearing that when she first saw defendant's photograph, "it was 50/50, it could have been him, it could have been other people." After she and Castro put a piece of paper on the picture to simulate a cap, visualized defendant with a brown leather jacket, a white T-shirt and facial hair, and compared the photograph to several others, Stewart became "a hundred percent sure it was him." Stewart and Castro reported their selection of defendant's picture to Detective Brian Costello.
Costello subsequently learned that defendant had been arrested on another charge, and was in jail. He obtained a judicial "take-out order" to remove defendant from Rikers Island and place him in a lineup, but he made no attempt to contact an attorney for defendant; the lineup took place on January 24, 1999 with no defense counsel present. Stewart picked out defendant as the robber, as did Gamble, who had not been present at the viewing of the photographs. Castro did not attend the lineup.
Evidence of the photographic identifications was clearly inadmissible ( see e.g., People v. Caserta, 19 NY2d 18; People v. Baker, 23 NY2d 307). The prosecution conceded that the absence of counsel at the lineup rendered evidence of the lineup identifications inadmissible also ( People v. Coleman, 43 NY2d 222; People v. Sugden, 35 NY2d 453), and consented to an "independent source" hearing ( People v. Dodt, 61 NY2d 408, 417). After holding such a hearing, Supreme Court found that Stewart and Gamble had an independent source for their in-court identifications of defendant, and denied a motion to suppress those in-court identifications.
Following the independent source hearing, defendant's counsel made the strategic judgment that it would do defendant more good than harm if the jury learned about the arguably suggestive viewing of the photographs on October 16 — as long as the jury did not also learn about the January 24 lineup. Defendant therefore requested an in limine ruling from the trial judge: "If I were to question Miss Stewart or Miss Castro or bring out the fact that there was that type of identification procedure based on the photographs, would that open up the door to the lineup testimony?" Supreme Court ruled that it would, saying that to inform the jury about the photographic identification and not the lineup would be to give it "incomplete information." Defense counsel then said that he would not ask any questions that would open the door, and he did not refer to the photographic identification at trial. Defendant was convicted and his conviction was affirmed by the Appellate Division. A Judge of this Court granted defendant leave to appeal, and we now affirm.
Defendant was tried twice because his first trial ended in a hung jury. The in limine ruling at issue here was made in connection with the second trial; the judge at the first trial made a similar ruling on a similar application.
There is some confusion in the rulings of both Supreme Court and the Appellate Division. Supreme Court referred to "a lineup in which each individually I presume without reference to the other picked the defendant out of a group of similar-looking people." Thus, the trial judge apparently thought that she was ruling on whether the door was opened to two lineup identifications. Similarly, the Appellate Division memorandum refers to "lineup identifications" in the plural ( 305 AD2d 116, 116 [2003]). In fact, Castro did not make a lineup identification and Gamble, who did, had no involvement in the viewing of the photographs. Only Stewart was involved in both events, and thus inquiry into the photographic identification could have "opened the door" only to evidence of Stewart's lineup identification, not Gamble's. Defendant did not complain of this apparent confusion below and does not rely on it here. The record indicates that defense counsel was not going to inquire about the viewing of photographs if it opened the door to any testimony about the lineup.
Discussion
The leading case in this Court on "opening the door" is People v. Melendez ( 55 NY2d 445). That was a murder case in which the key prosecution witness was a man named Marrero. Marrero had previously been a suspect: a "concerned citizen" had told the police that both Melendez and Marrero were involved in the crime ( id. at 449).
The arresting officer who had spoken to the "concerned citizen" testified at trial, but of course did not relate under direct examination the informant's hearsay statement ( id. at 448). On cross-examination of the detective, Melendez's counsel brought out that Marrero "was a suspect" at one point in the investigation ( id.). On redirect, the prosecutor asked on what basis Marrero was a suspect, and the detective was permitted, over objection, to relate the "concerned citizen['s]" detailed allegations about both Marrero (who, apparently, the informant had confused with Melendez's codefendant) and Melendez ( id. at 449-450).
We held in Melendez that the cross-examination had "open[ed] the door" to some, but not all, of the hearsay testimony: it was appropriate for the detective to repeat the statements of the informant about Marrero, showing that the police suspicion of him resulted from mistaken identity, but not the informant's accusation of Melendez ( id. at 452-453). Noting that "[t]he extent of redirect examination is, for the most part, governed by the sound discretion of the trial court," we made the following observations about when, and how far, questions asked on direct examination may open the door to otherwise inadmissible evidence on redirect:
"The `opening the door' theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the `subject-matter of the cross-examination [which] bear[s] upon the question at issue.' ( People v. Buchanan, 145 NY 1, 24, supra.) Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to `meet what has been brought out in the meantime upon the cross-examination.' (6 Wigmore, Evidence [Chadbourn rev ed], § 1896, p 737; accord People v. Schlessel, 196 NY 476, 481, supra; People v. Lewis, 18 AD2d 277, 279-280.) . . . and the trial court should normally `exclude all evidence which has not been made necessary by the opponent's case in reply.' (6 Wigmore, § 1873, p 672 [emphasis in original].)" ( Id. at 451, 452.)
While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other "opening the door" issues. For example, in People v. Rojas ( 97 NY2d 32), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide "door-opening" issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.
Following the approach taken in Melendez and Rojas, we conclude that Supreme Court's ruling here was within its discretion. Defendant wanted to bring out before the jury the suggestive nature of the photographic identifications and Stewart's initial uncertainty on viewing the photographs. The point of doing this, of course, was to attack Stewart's in-court identification of defendant as the robber — specifically, to suggest to the jury that Stewart could not confidently identify him without being helped or coached. Indeed, defendant's counsel made that suggestion in closing argument at trial even without the help of the photographic identifications: "look at the setting. We're here in a courtroom. I'm the defense attorney. I'm asking the questions. He is sitting next to me. Who else are they going to identify in this courtroom?" If evidence of the photographic identifications, but not the lineup, had been admitted, counsel would have been free to argue that the suggestive in-court identification was preceded by a suggestive viewing of photographs — while the jury remained ignorant that a lineup identification, not in any way suggestive as far as the record shows, occurred between the two.
Defendant contends that the Melendez/Rojas approach is unacceptable here, and that a different and stricter rule should be followed, because the evidence to which the door was held to be opened — Stewart's lineup identification of defendant — was obtained in violation of defendant's constitutional rights. Defendant did not present this argument to Supreme Court. The issue is not preserved for our review, and we do not address it.
Defendant's counsel, in presenting the motion in limine, detailed for the judge the facts he wanted to elicit: that Stewart was "only fifty percent sure," that "she and Miss Castro . . . put a piece of paper over his head to simulate the hat . . . and imagine[d] what he would look like in a brown leather coat," and that "[s]ubsequent to that they looked at a few more photographs, four or five. They imagined a few others with a brown leather coat and a piece of paper over their head[s] and went back to Mr. Massie and made a determination Mr. Massie was the perpetrator of the crime."
Supreme Court was well within its discretion in concluding that the course defendant wanted to take would mislead the jury, and that the jury should hear about both of Stewart's pretrial identifications, if it heard about either of them. This is not a case where, to use the words of Melendez, the prosecution offered evidence that was "remote" or "tangential" to the subject matter the defendant brought up. The lineup evidence would have directly contradicted the impression given by the evidence about the viewing of photographs, that Stewart had always needed help to identify defendant as the robber. Thus Supreme Court had ample basis for concluding that the lineup evidence was "necessary to meet" the evidence defendant proposed to introduce.
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed.