People v. King

73 A.D.2d 895, 424 N.Y.S.2d 192

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1980
• Status: Published

Opinions

— Judgment, Supreme Court, Bronx County, rendered March 3, 1978, convicting defendant of assault in the first degree and sentencing him thereupon to an indeterminate term not to exceed 12 years, reversed, on the law, and the matter remanded for a new trial. At the trial of this assault case the sole defense was mistaken identification. Defendant attempted to show that one Marvin Mitchell, not he, was the assailant. In the course of his summation the prosecutor commented as follows: "Defense counsel wants you to put Marvin Mitchell on trial. She wants you to put anybody on trial. Absolutely anybody. She could see somebody out in court and she would say, yeah, it’s him. It’s somebody else. Anybody but the defendant, Willie King. But we are dealing with Willie King. Did Willie King shoot Kevin Woodward and that’s what you have to determine and did the testimony beyond a reasonable doubt to prove to you that Willie King shot the defendant (sic)? Without your speculating as to a thousand other things. And I told you at the beginning that we can’t—we don’t have the answer to every single question in this case. But I tell you who can, who does have that answer. The perpetrator of that crime, the defendant, Willie King. But the People cannot be inside his mind. * * * So it is on your shoulders to decide whether the defendant, Willie King, is guilty of the assault of Kevin Woodward or is not guilty. All of the evidence, virtually every single bit of evidence introduced in this case points to one conclusion and that is the guilt of the defendant Willie King. There has been no evidence introduced here at this trial which is contrary to that belief... Convict Willie King at the expense of letting the real assailant, the real shooter go free with such conviction of each and every witness. What kind of society would we live in for that to happen? * * * Not one defense was effectively raised on behalf of the defendant Willie King. Not one iota, not one scintilla of a defense was raised. Defense counsel has attempted to raise smoke screens in front of you to put other people on trial, not the defendant. He is the only one in this case which everyone, everyone is conspiring to get convicted, but he is a completely innocent man, she would have you believe. Well that’s her job to do. I mean it’s her job to raise her smoke screens in front of you. * * * All of the testimony of all of the witnesses points to one basic thing. They are all absolutely certain that the defendant Willie King shot Kevin Woodward. There are no doubts. Smoke screens of everything else there has been brought out in this case is just that. The smoke screens of a defense that has no place to go but to your imaginations. There is no testimony. None that proves or shows or indicates whatsoever that the defendant Willie King was not the person that shot Kevin Woodward.” In our view these comments violated defendant’s privilege against self incrimination. The continual stress on defendant’s silence in the face of the evidence deprived him of a fair trial. Contrary to the People’s assertions, defendant did object to these comments and the issue is preserved for appellate review. We are also of the view that defendant should have been permitted to elicit, for impeachment purposes, either on cross-examination of Woodward or by independent proof after an appropriate foundation had been laid, that within minutes after Woodward had been shot a boy approached him and asked "Are you the one that Marvin shot?”, to which Woodward answered "Yes.” Concur—Birns, J. P., Sandler, Sullivan and Markewich, JJ.