People v. Smalls

Silverman, J. (concurring).

I concur in Justice Ross’ opinion. I add only the following comments:

*453The portion of McGee’s statement that is criticized as not interlocking with Smalls’ oral statement is “Jake told this guy [Smalls] what we planned to do.”

1. The issue at the trial as to defendant Smalls was not whether he knew that a robbery was being attempted but whether he was the alleged second robber in the apartment at the time of the shooting, i.e., a pure issue of identification. Indeed, in a sense it may be said that intent was not really a controverted issue at the trial. Nobody at the trial disputed that the two men who burst into the victim’s apartment were intent on robbery. Smalls’ factual contention simply was that he was not one of those two men. In his summation, Smalls’ attorney never even adverted to the question of whether Smalls knew that a robbery was planned. He merely argued misidentification.

2. McGee’s statement to the police officer was redacted in a manner that was agreeable to all parties (without waiving the point that there should have been a severance). The criticized portion of McGee’s statement was not redacted. When it was read at the trial there was no objection. But three pages later, Smalls’ attorney said that the criticized portion “should have been redacted. I don’t know why it was not.” Smalls’ attorney’s failure to object when the criticized portion was read and his oversight in failing to get this portion of the statement redacted precludes objection on appeal to the criticized portion of the statement.

3. Neither the District Attorney in his summation nor the court in its charge ever referred to the criticized portion of McGee’s statement.

4. According to Smalls’ own statement, when “Jake” (Green) and Jenkins came out of the bedroom Smalls asked what was happening, and “Jake” replied, “We are going to do it now.”