AD4 order dated June 7, 2013, modifying judgment of conviction. Decision below: 107 AD3d 1391, 967 NYS2d 288. Abdus-Salaam, J., granted leave March 5, 2014.

ISSUES PRESENTED: (1) Whether the court’s charge on first-degree sexual abuse, based upon a theory not charged in the indictment, did not warrant reversal because there was no evidence to support the uncharged theory. (2) Ineffective assistance of trial counsel. (3) Whether the prosecutor’s improper comments on defendant’s silence were harmless. (4) Concurrent versus consecutive sentences. (Assigned counsel: Philip Rothschild, Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, NY 13202.)

Held: as a matter of state evidentiary law–the People’s reference in their case in chief to defendant’s selective silence during custodial interrogation after waiving Miranda may not be used by the prosecution either to allow the jury to infer a defendant’s guilt or to impeach his credibility if he has not testified.

 

Factual Background: Williams was accused of raping his former girlfriend at her apartment where the bathroom sink was destroyed during the incident, according to the complainant’s trial testimony. The complainant called the police resulting in Williams’ arrest and interview following Miranda warnings.  While Williams admitted knowing the complainant he remained silent when questioned about the incident.   Before the grand jury Williams testified that the sex had been consensual.    The prosecution at trial introduced the grand jury testimony and asked the jurors to compare it to what Williams had told the police because he had not admitted having sex with the complainant.  Williams did not testify at trial or offer any evidence.   The prosecution on summation argued that Williams had manufactured his grand jury testimony after learning his DNA had been found on the complainant’s body and urged the jury to consider his partial silence during the interrogation in support of the fabrication claim.

 

The Appellate Division held prosecutor’s statements about post-arrest silence were improper but that the error was harmless. 

 

The Court of Appeals reversed finding that state evidentiary laws preclude the use of pretrial silence and that generally pre-trial silence cannot be used to impeach trial testimony.    Silence is generally of low probative value as it is ambiguous and jurors can use it to draw unwarranted inferences.   The Court recognized that there might be “rare cases” justifying the use of pre-trial silence during the prosecution’s case in chief but that generally it cannot be used.   Distinguishing People v. Rothschild, 35 N.Y.2d 355 (1974), the Court observed that there, the defendant, a police officer was under a duty to inform his superiors about his intent to solicit a bribe which he had not done.  Similarly the Court distinguished People v. Savage, 50 N.Y.2d 673 (1980) where impeachment by “conspicuous omission of exculpatory facts” was found permissible.  In Savage the evidence had not been offered during the prosecution’s case in chief.  The Court rejected the prosecution’s argument that the circumstances presented by Williams’ case were analogous to Savage and Rothschild.  As Williams did not testify there was no reason  for the Court to address the applicability of those cases.   The People cannot introduce testimony (here the grand jury testimony) and then impeach that evidence on their direct case, the Court held.  There was no need to depart from precedent merely because Williams silence was “partial.”  The prosecution also improperly sought to use Williams’ partial silence as an admission of guilt.

 

Applying non-constitutional harmless error standards, the Court deemed the error prejudicial because even assuming overwhelming evidence of guilt there was a significant probability that the jurors would have acquitted without the error. The evidence was highly prejudicial and the court issued no curative instruction. 

 

In dissent Abdus-Salaam found the error to be harmless in light of the overwhelming evidence of guilt.  She agreed with the majority that post-arrest silence would only be admissible under the most unusual circumstances during the prosecution’s case in chief.

 

Comment: the Appellate Divisions have been very forgiving of the prosecution’s use of pretrial silence to impeach testifying defendants in the wake of People v. Savage. This case, while addressing the use of pre-trial silence in the context of the prosecution’s case in chief may be useful in challenging the use of pre-trial silence in all contexts.  With its strong language about the prejudicial impact of such evidence and selective silence’s low probative value, the case will strengthen future challenges to the use of a defendant’s silence.