Issue: This appeal presented the question of whether, in a case where a justification
defense is presented, a complainant’s prior acts of violence are admissible to prove
that complainant was the initial aggressor.

Held: A complainant’s prior acts of violence are not admissible to prove that
complainant was the initial aggressor, at least not where complainant received
youthful offender treatment following a prosecution for the prior offense or offenses.

CAL observes: Guerra is interesting on at least two levels.

First, it’s interesting because it’s representative of how the Court has dealt with
a number of important legal issues in recent years. There was a short unsigned
memorandum affirmance, with a lengthy dissent by now-Chief Judge Wilson, joined
by Judge Rivera, who had granted leave. The majority’s memorandum decision
dodged what appeared to be the significant issue in the case, which had been teed up
and faced no obvious procedural bars. In other words, the Court chose not to
provide guidance on an important legal issue when it had a well-presented
opportunity to do so. In contrast to the short memorandum decision, Judge Wilson’s
dissent explored the issue in depth.

Second, the decision is interesting because the underlying legal question is an
important one that recurs with frequency, i.e., the extent to which a complainant’s
prior acts of violence are relevant and admissible where the accused raises a
justification defense.

The facts in Guerra were relatively simple. On St. Patrick’s Day in 2016,
Santino Guerra---a 20-year-old with no prior history of violence---stabbed
complainant with a penknife from his keychain, after an argument between strangers
turned violent. Mr. Guerra claimed he was acting in self-defense. According to Mr.
Guerra, it was complainant who first threatened him with a broken beer bottle, and
he responded to that threat with the pen knife to defend himself.
Unbeknownst to Mr. Guerra, complainant had a history of violence. Four
times he’d been adjudicated a youthful offender after attacking or threatening another
person. One of those incidents had even taken place on a prior St. Patrick’s Day.
Two elements of the justification defense are relevant to this question of
admissibility:

First, ordinarily, a defendant cannot prevail with a justification defense if they
were the initial aggressor. If you’re the first to introduce deadly force, you generally
can’t claim your later actions were justified. The jury here needed to decide who
struck first, or threatened to strike first. The defense argued that the complainant’s
prior violence was relevant to who was the initial aggressor. If complainant had been
violent in the past, it was more likely he was the first to act violently here.

Second, a person is justified in using deadly force only if they reasonably believe
it necessary to defend themselves against deadly physical force. Whether the accused
knew that complainant had a reputation for violence, or had acted violently in the
past, is relevant to the question of whether the accused acted reasonably in defending
themselves.

The trial court allowed the defense to question complainant about two of the
prior incidents of violence, but only to impeach complainant’s credibility: the defense
was permitted to argue that complainant had a motive to lie because he was still on
probation for the two previous incidents. But, over Mr. Guerra’s objection, the court
instructed the jury that the evidence of the prior incidents was relevant only to
whether complainant had a motive to lie and not relevant to show who was the initial
aggressor.

These rulings were consistent with New York’s patchwork of rules that had
developed over the past 150 years surrounding the relevance and admissibility of
prior acts of violence by complainant or the deceased when a justification defense is
raised.

Nearly 150 years ago, in Stokes v. People, 53 N.Y. 164, 174 (1873), the Court of
Appeals had ruled that, when justification is an issue, prior threats made by the
complainant or the deceased, even if unknown to the defendant, are admissible,
because they tended to show the state of mind of the complainant, and that he was
the initial aggressor.

But in 1904, the Court partially backed away from that rule in People v.
Rodawald, 177 N.Y. 408 (1904). Rodawald held that a defendant could prove that
complainant had a general reputation for violence, but only if the defendant had
knowledge of that reputation. By the Court’s logic, that reputation for violence was
not admissible to prove who was the initial aggressor. But it was relevant and
admissible to show that the defendant reasonably feared the complainant, if
defendant was aware of the violent reputation.

Finally, in the 1970s, in People v. Miller, 39 N.Y.2d 543 (1976), the Court had
ruled that, where justification is an issue, the accused may introduce evidence of the
victim’s prior specific acts of violence but only if the accused knew about them. In
other words, proof of prior acts of violence were not relevant to show who was the
initial aggressor might be relevant to show whether the accused acted reasonably, but
only if the accused was aware that complainant had previously acted violently.
Under this proof-of-prior-violence pastiche, the defense can introduce
evidence of prior violence, but only if that prior violence was known to the accused.
And, absent a direct threat, the evidence of prior violence is not relevant to the issue
of who the initial aggressor was, but only to whether the accused acted reasonably.
Guerra asked the Court to modify the Miller rule. That rule has been
recognized as out of the mainstream of the rules applied in the majority of states and
the Federal Rules of Criminal Procedure. Most states allow the defense to prove prior
acts of violence and argue their relevance to the question of who the initial aggressor
was.

The majority sidestepped the issue. It ruled that this was not the case to revisit
Miller because of the policy concerns presented by the fact that complainant had been
adjudicated a youthful offender.

Now-Chief Judge Wilson’s dissent reveals this to have been a missed
opportunity to modernize, clarify, and create a more unified theory for admissibility
of prior violent conduct by a complainant in a justification case. Because the court
had allowed the defense to cross-examine complainant about the prior bad acts, there
would have been only a nominal additional violation of the protections afforded by
youthful offender treatment. The jury already knew that complainant had acted
violently in the past: there was no reason to forbid the jury from considering it for the
purpose of assessing the initial aggressor.

As Judge Wilson recognized, excluding evidence of the complainant’s past acts
of violence was inconsistent with the truth-seeking function of a trial. If complainant
had previously acted with violence under similar circumstances, it was relevant to
show that they were the initial aggressor. If you were a juror assessing who the initial
aggressor was, you would want to know whether the complainant had previously
acted with violence under similar circumstances.

We’re all familiar with the Molineux rule, which excludes proof of an accused’s
prior bad acts to show that the accused had a propensity for crime in general or a
category of types of crimes. But the Molineux rule protects only those charged with
crimes, not witnesses or complainants. The complainant is not entitled to the same
procedural protections as criminal defendants because the state is not criminally
prosecuting them.

Judge Wilson made a persuasive case for overruling Miller and allowing proof
of a complainant’s prior violence as relevant on the question of who the initial
aggressor was. But regardless of whether the Court would have ultimately agreed to
overrule Miller, the failure of the majority of the Court to address the issue here, and
put forward a unifying rule, will have consequences for those charged with crimes
raising a justification defense. This is an issue that recurs with frequency.
It’s an encouraging sign that Judge Wilson, who has never shied away from
taking on large and difficult questions in his opinions, is now the Chief Judge. It
remains to be seen how large an influence he can have in that role on the Court’s
decision-making norms.