–by Emily Keable
Citations: People v. Chery, 2016 N.Y. Lexis 3459 (2016); People v. Savage, 409 N.E.2d 858 (N.Y. 1980).
Abstract: When a defendant’s initial statements to the police differ from the testimony the defendant provides at trial, the prosecution is able to impeach the defendant.
The defendant and another man robbed $215 from the complainant, who was the only employee at a small grocery store. The complainant was closing the store that night, but there were two other witnesses who testified at trial. The officers arrived at the scene and handcuffed both the defendant and the complainant, unsure at this point who was at fault. The officer observed a sharp wooden object in the defendant’s hand and a long wooden board on the sidewalk. The officer recovered $215 from the defendant’s pocket. After speaking with both parties and the two witnesses, the defendant was subsequently arrested.
Prior to trial, the trial court denied the defendant’s motion to suppress the statement he made to the responding officer at the scene. The defendant had asked the responding officer, “why isn’t [complainant] going to jail, he kicked my bike, he should go to jail too.” The defendant’s theory was that the statement was “spontaneous and not the product of investigation” and should therefore not be used against him.
At trial, the defendant took the stand and testified on direct examination that before the incident, he saw the complainant chasing two girls running away from the store. The complainant was yelling at the girls for trying to steal from the store. The defendant continued to testify that he told the complainant that yelling at the young girls was not good for business. The complainant then kicked the defendant’s bicycle and hit the defendant in the head with a piece of wood. The defendant testified that when the police arrived he had been struggling over control of the piece of wood with the complainant.
After direct, the prosecution asked the trial court to impeach the defendant with the defendant’s selective silence during the initial, spontaneous statement to the police. The prosecution relied on People v. Savage to assert that the defendant could be impeached as the defendant testified to certain events that were not included in the initial statement to police. Although the defense argued that Savage was distinguishable from the present case because the defendant in Savage had received Miranda warnings, the trial court allowed the prosecution to impeach the defendant. Subsequently, the defendant contradicted himself on the stand and he was convicted of robbery in the first degree and two counts of robbery in the second degree. The Appellate Division confirmed.
The issue presented to the Court of Appeals was whether the trial court erred in allowing the prosecution to use the defendant’s selective silence to impeach the defendant’s testimony.
Initially, the court held that the defendant’s constitutional rights to due process or to remain silent were not invoked in this matter. Rather, the court focused on the prosecutor’s use of the defendant’s selective silence during a spontaneous statement for impeachment purposes.
The general evidentiary rule established precludes the use of a defendant’s pretrial silence. This rule has been held applicable both to direct examination and for impeachment purposes. The rational behind this rule has remained steadfast in that a defendant’s silence has a significantly low probative value due to its general ambiguity.
Savage recognizes a narrow exception to this rule. When “circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment.”
The court held that this case fell within the confines of Savage. It emphasized that the defendant’s statement was made spontaneously at the scene in an attempt to inform the police on whom to arrest. The defendant’s statement was not inculpatory, but was rather a description of the event. Therefore, since the defendant testified that he spoke with police at the scene, the credibility of his initial spontaneous statement was legitimately called into question. It was viewed that the defendant’s selective silence to the police on facts that would have been more favorable to him illustrated an attempt to fabricate his testimony. Therefore, the jurors were properly allowed to draw their own conclusions from the prosecution’s introduction of the defendant’s selective statements.