People v. Washington

O’Connor, J. (dissenting).

Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the third degree. Inculpatory statements, allegedly made by defendant after his arrest, were used to impeach his credibility at trial despite the finding of the trier of fact at an earlier hearing conducted pursuant to the dictates of People v Huntley (15 NY2d 72), that the People had failed to establish beyond a reasonable doubt that defendant received Miranda warnings or that he made any statements. The use of the suppressed statements for any purpose denied defendant a fair trial, and a reversal is required. Assuming, arguendo, that the alleged statements could have been used for impeachment purposes, the charge to the jury governing the use of the disputed statements was inadequate and constitutes an independent basis for reversing the conviction.

THE FACTS

The factual issues presented to the jury in this case were simple and their resolution revolved primarily upon questions of credibility. On June 6, 1975 Police Officer Caracappa received a radio run indicating that there was a report of a man with a gun in a specified apartment at 2729 West 33rd Street in Brooklyn. Upon his arrival at the scene, Caracappa was let into the apartment by Gertrude Washington, defendant’s wife. Defendant was found sleeping on a living room couch with a gun handle protruding from his pants pocket. After removing the gun, Caracappa roused defendant and arrested him.

*102A Huntley hearing was conducted on May 17, 1976. Officer Caracappa testified that he had properly advised defendant of his Miranda rights and that soon thereafter defendant told him that he had found the gun in a parked car on "29th Street and Mermaid Avenue”. The officer further testified that approximately two hours later, while at the 84 th Precinct, defendant altered his story and claimed that his wife had planted the gun on him while he slept. On cross-examination, however, Caracappa’s credibility was seriously impaired when he was forced to admit that at a preliminary hearing conducted on June 9, 1975 he had testified under oath that defendant had not made a statement at the time of his arrest and that on his written report he had affirmatively indicated that defendant had not made a statement. In light of these troubling and glaring inconsistencies, Mr. Justice McGrover found at the termination of the hearing as follows: "the Court finds that the People have not established beyond a reasonable doubt that the Police Officer gave the defendant his Miranda warnings; nor have they established that those statements were made by this defendant” (emphasis supplied).

At the trial, presided over by Mr. Justice Scholnick, Officer Caracappa testified to the circumstances which led to his arrest of defendant. Gertrude Washington, now defendant’s estranged wife, testified that prior to June 6, 1975 she had been having arguments with her husband and on occasion he had struck her. On the evening of June 6 appellant came home, apparently "high” or "drunk”, and fell asleep on the couch. At this point she noticed the gun in his pocket. Sarah Spencer, Gertrude’s sister, who had lived with the Washing-tons for several months prior to this incident, also saw the gun but left before the police arrived.

Defendant testified in his own behalf. On the evening in question he came home to visit his children but fell asleep on the couch. He did not have a gun when he entered the apartment and only became aware of its existence when awakened by Caracappa. He had made no statement to Caracappa when arrested. He had previously argued with his wife about Sarah Spencer’s presence in the apartment, and Sarah had been in the apartment when he arrived on June 6.

Over strenuous objection, the Trial Judge ruled that pursuant to Harris v New York (401 US 222) defendant could be cross-examined about the inconsistent statements allegedly made to Caracappa. The prosecution was permitted to ask *103defendant whether he had ever told Caracappa that he found the gun in a car on Mermaid Avenue or that his wife had planted the gun on him. When defendant denied making any such statements Caracappa was recalled as a rebuttal witness, repeated his Huntley hearing testimony, and was cross-examined in the same manner as before. At this time the court failed to instruct the jury that any previous inconsistent statements that they might find were made by defendant could not be utilized by them as evidence of guilt, but were admitted solely to impeach his credibility. In fact, only after the summations did the jury receive instructions on the role of prior inconsistent statements, and specific instances of inconsistent testimony were referred to only insofar as Caracappa’s testimony was concerned.

The jury had great difficulty in reaching a verdict. They retired to deliberate at approximately 12:30 p.m. on February 17, 1977 and, after being sequestered overnight, found defendant guilty at approximately 4:10 p.m. on February 18. On two separate occasions the jury reported itself hopelessly deadlocked and a verdict was reached only after supplemental instructions were given.

THE LAW

Any analysis must begin with a determination of whether Mr. Justice McGrover was acting within the scope of his authority when he made a factual determination that the People had failed to establish beyond a reasonable doubt that defendant had made any statements to Caracappa. Both case law and simple logic dictate the conclusion that, at a Huntley hearing, the trier of the facts, in order to properly weigh the voluntariness of an admission, has the inherent and ineradicable right to determine whether the challenged admission was ever made. If it be determined that the alleged statement was, in fact, never made, it patently follows that it may not be referred to, for any purpose, at the subsequent trial.

In Jackson v Denno (378 US 368), the Supreme Court of the United States issued the ruling which led to the New York Court of Appeals decision in People v Huntley (15 NY2d 72). In Jackson (supra), the then existing voir dire procedure for determining the voluntariness of a confession was ruled to be a denial of due process. It was there clearly stated that a conviction cannot be predicated, in whole or in part, upon a coerced confession, regardless of its truth, and that the New *104York procedure at issue inevitably injected irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness. Furthermore, a danger existed that a confession found to be coerced played some part in the jury’s deliberations. The court in Jackson then stated (p 380): "A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined” (emphasis supplied).

The landmark New York case of People v Huntley (supra) followed closely upon the heels of Jackson. The Court of Appeals stated (p 78) that " 'the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused’ ” and then went on to suggest (p 78) that "[t]he Judge must find voluntariness beyond a reasonable doubt before the confession can be submitted to the trial jury.”

When, as here, a defendant denies having made any statement and claims, in the alternative, that any statement made was extracted from him involuntarily, it is at least plausible for the trier of fact to rationally and reasonably conclude that although precise and proper Miranda warnings were given, the defendant never made a single admission to his interrogator. The scope of a Huntley hearing should therefore allow for such a determination because, as noted in Jackson (supra, p 380), "the underlying factual issues” must be determined before voluntariness can be found. The concept of voluntariness does not exist in a vacuum. Rather, it must attach to some deed or action, in this instance the act of confession. Absent a finding that a confession was indeed made, voluntariness becomes a moot issue, and, as Huntley makes clear, the confession cannot be submitted to the jury when voluntariness is not found.

In Harris v New York (401 US 222, supra) and Oregon v Hass (420 US 714), the United States Supreme Court permitted the use of inculpatory statements solely for impeachment purposes where the strictures of Miranda v Arizona (384 US 436) had been violated. In Harris (supra, p 225), the court noted that a Miranda violation does not open the door to the defendant to "commit perjury” and hence it does not prohibit the use of a statement for impeachment purposes. However, it added the clear caveat that its ruling applied only if "the trustworthiness of the evidence satisfies legal standards” (p *105225). We find that thought echoed in Oregon v Hass (supra, p 722), where the court said: "We are, after all, always engaged in a search for truth * * * so long as the search is surrounded with the safeguards provided by our Constitution.”

The doctrine of Harris and Hass was recently extended by People v Wise (46 NY2d 321) to embrace, for impeachment purposes, an unverified oral statement which the defendant, on cross-examination, denied making. The Court of Appeals reversed an order of this court and held that impeachment on rebuttal was proper and fully consistent with a liberal use of prior inconsistent statements. But the case at bar is clearly distinguishable from Wise, which involved simply a denial by the defendant that he made the statement. A question of credibility was thus presented for the jury. Here a court, following a hearing, made a finding that the People had failed to establish that the statement had in fact been made. There the issue of trustworthiness was not directly before the court. Here it is the principal issue. It should be noted that the trustworthiness of a statement in this context refers not only to volitional competency (whether Miranda was observed) but, of equal importance, to whether a statement was in fact ever made (the scope of a Huntley hearing). The basic principle that an involuntary statement cannot be used at all at trial has long since been reaffirmed (Mincey v Arizona, 437 US 385) and it would seem to make small sense and little logic to permit impeachment proceedings predicated upon a fabricated confession and to deny it when based upon a coerced one! Harris, Hass and Wise (supra) have no applicability where the People fail to establish by legal standards that an inculpatory statement has in fact been made. Under the facts here disclosed, the use for impeachment purposes of the alleged statements was a violation of due process and denied defendant a fair trial. The judgment should be reversed and a new trial should be conducted.

By any standard, even if the alleged statements were admissible for impeachment purposes, a reversal is still mandated because the charge given to the jury as to the limited purposes for which the statements were admitted was totally inadequate. At the time that Officer Caracappa offered his rebuttal testimony the court failed to promptly instruct the jury that this testimony could be used for impeachment purposes only. Furthermore, the charge on the use of prior inconsistent statements did not clearly apprise the jury that *106such statements were not to be considered as evidence of guilt. The People concede the inadequacy of the charge but consider it de minimis. I hold that because of this error a reversal is required (see People v Patterson, 48 AD2d 933; People v Boone, 56 AD2d 892), even though defendant failed to properly object; because of the seriously prejudicial nature of the error (see People v Campbell, 59 AD2d 912).

In conclusion, it is noted that the People contend that the use of the alleged statements did not contribute at all to defendant’s conviction and should therefore be deemed harmless. This argument merits little discussion. The prosecutor relied heavily on the use of the inconsistent statements in his summation, arguing that they evidenced defendant’s consciousness of guilt. In a case that revolved almost entirely around the issue of credibility, and in which the jury twice reported itself deadlocked, it cannot be said that there was no reasonable possibility that the admission of the evidence contributed to the conviction or that the error was harmless beyond a reasonable doubt (see People v Almestica, 42 NY2d 222; People v Crimmins, 36 NY2d 230).

Damiani, J. P., and Gulotta, J., concur with Rabin, J.; O’Connor, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.

Judgment of the Supreme Court, Kings County, rendered April 12, 1977, affirmed.