
    The People of the State of New York, Respondent, v. Herbert L. Pollock and William Arnold, Appellants.
    Argued October 31, 1967;
    decided December 28, 1967.
    
      
      Arnold D. Roseman for Herbert L. Pollock, appellant.
    I. Appellant Pollock was denied a fair trial by the prejudicial conduct of the prosecutor, seemingly condoned or approved by the trial court, in calling to the witness stand the alleged accomplice witness Earl James, with advance knowledge that James was going to invoke the privilege against self incrimination and refuse to answer questions. (Namet v. United States, 373 U. S. 179; Fletcher v. United States, 332 F. 2d 724; People v. Minsky, 227 N. Y. 94; People v. Minkowitz, 220 N. Y. 399; People v. Gibson, 218 N. Y. 70; United States v. Tucker, 267 F. 2d 212; United States v. Maloney, 262 F. 2d 535; United States v. 5 Cases, Etc., 179 F. 2d 519.) II. Appellant Pollock was denied a fair trial by the repeated and pervasive way in which the alleged confessions or admissions of codefendant Arnold, which were hearsay as to Pollock, but which inculpated him, were permitted to be spread before the jury to the fatal prejudice of appellant Pollock. (People v. Robinson, 13 N Y 2d 296; People v. Robinson, 273 N. Y. 438; People v. Fisher, 249 N. Y. 419; People v. Oree, 22 A D 2d 784; Delli Paoli v. United States, 352 U. S. 232; Krulewitch v. United States, 336 U. S. 440; United States v. Bufalino, 285 F. 2d 408; People v. La Belle, 18 N Y 2d 405; People v. Feolo, 282 N. Y. 276; People v. Schwarz, 10 A D 2d 17; People v. Rossi, 270 App. Div. 624; People v. Krugman, 44 Misc 2d 48.) III. The confession of appellant Pollock was not proven voluntary beyond a reasonable doubt. (People v. Huntley, 15 N Y 2d 72; People v. Veitch, 25 A D 2d 494; Davis v. North Carolina, 384 U. S. 737; Haynes v. Washington, 373 U. S. 503; Fikes v. Alabama, 352 U. S. 191; Ashcraft v. Tennessee, 322 U. S. 143; Miranda v. Arizona, 384 U. S. 436; Townsend v. Sain, 372 U. S. 293; Leyra v. Denno, 347 U. S. 556; People v. Donovan, 13 N Y 2d 148; People v. Meyer, 11 N Y 2d 162.)
    
      Robert S. Schneider and Jacob P. Lefkowitz for William Arnold, appellant.
    I. Appellant William Arnold’s confession was not proven voluntary beyond a reasonable doubt. (People v. Huntley, 15 N Y 2d 72; People v. Veitch, 25 A D 2d 494; Davis v. North Carolina, 384 U. S. 737; Haynes v. Washington, 373 U. S. 503; Fikes v. Alabama, 352 U. S. 191; Ashcraft v. Tennessee, 322 U. S. 143; Miranda v. Arizona, 384 U. S. 436.) II. The placing on the stand of the accomplice witness Earl James by the prosecution, knowing beforehand that James was going to refuse to testify on grounds of self incrimination, was fatally prejudicial to the defense, and deprived appellant of a fair trial. (Namet v. United States, 373 U. S. 179; People v. Minsky, 227 N. Y. 94; United States v. Maloney, 262 F. 2d 535.) III. Refusal to allow appellant to inspect and use the statements which had admittedly been taken from Earl James by the police, and as to which there were indications that James may have exculpated himself and defendants, amounted to a denial of due process. (People v. Rosario, 9 N Y 2d 286; People v. Agron, 10 N Y 2d 130; People v. Malinsky, 15 N Y 2d 86; United States v. Cardillo, 316 F. 2d 606.) IV. Appellant Arnold was denied a fair trial in that alleged confessions or admissions of codefendant Pollock, which were hearsay as to Arnold, but which inculpated him, were permitted to be spread before the jury. V. Appellant Arnold was denied a fair trial by the court’s gratuitous disclosure to the jury that the defense had moved for dismissal at the end of the People’s case and that the court had denied the motions.
    
      Aaron E. Koota, District Attorney {Aaron Nussbaum of counsel), for respondent.
    I. No error was committed in connection with the calling of the People’s proposed witness, Earl James, who invoked his privilege against self incrimination. (People v. Gibson, 218 N. Y. 70; Namet v. United States, 373 U. S. 179; United States v. Maloney, 262 F. 2d 535; Weinbaum v. United States, 184 F. 2d 330; United States v. Amadio, 215 F. 2d 605; Opper v. United States, 348 U. S. 84; People v. Lobel, 298 N. Y. 243; People v. Guardino, 286 N. Y. 132; United States v. Romero, 249 F. 2d 371; United States v. Gernie, 252 F. 2d 664; People v. Ashby, 8 N Y 2d 238; Fletcher v. United States, 332 F. 2d 724; People v. Levy, 15 N Y 2d 159; United States v. Tucker, 267 F. 2d 212.) II. The cautionary instructions to the jury regarding appellants’ confessions adequately preserved their rights to a fair trial. (People v. Vitagliano, 15 N Y 2d 360; People v. La Belle, 18 N Y 2d 405; Delli Paoli v. United States, 352 U. S. 232; People v. Fisher, 249 N. Y. 419.) III. The court properly determined that appellants’ confessions were voluntary beyond a reasonable doubt. (Jackson v. Denno, 378 U. S. 368; People v. Huntley, 15 N Y 2d 72; People v. Hill, 17 N Y 2d 185; Johnson v. New Jersey, 384 U. S. 719; Davis v. North Carolina, 384 U. S. 737; Haynes v. Washington, 373 U. S. 503; Fikes 
      v. Alabama, 352 U. S. 191; Ashcraft v. Tennessee, 322 U. S. 143.) IV. There was no error in connection with the court’s refusal to permit inspection of the statements taken from the proposed witness Earl James. (People v. Rosario, 9 N Y 2d 286; People v. Agron, 10 N Y 2d 130; People v. Malinsky, 15 N Y 2d 86; Brady v. Maryland, 373 U. S. 83.) V. The court’s comment to the jury regarding defendants’ motion to dismiss at the end of the People’s case was not error.
   Van Voorhis, J.

The defendants were charged with killing Martin Funk on December 14, 1962, by inflicting fatal wounds upon him with a knife. They confessed to killing Funk during a robbery at Funk’s television repair shop. Defendant Pollock made admissions to persons who occupied an apartment with him that he had held up a store and stabbed the victim. He was not quoted as having identified the store or the victim. A Huntley hearing was ordered by the Appellate Division (26 A D 2d 684), and the trial court found that the confessions were voluntarily made.

Both defendants took the stand at the trial as well as upon the Huntley hearing. Pollock denied that he had participated in any robbery or homicide and denied ever having been at the premises where Funk was killed. Arnold also sought to establish an alibi. Both testified that their confessions were false and had been extracted from them by force. Each, in his confession, involved Earl James as an accomplice.

The conviction of appellants depended upon their confessions to the police, which is conceded by the District Attorney’s office and is apparent from an examination of the record. Arnold’s statement was that Pollock discussed the robbery beforehand with Earl James and himself, that James was carrying a gun and stood outside the “ furthest ” door of the television repair shop, apparently on watch while the robbery by Pollock and Arnold was perpetrated inside. Pollock’s confession stated that he went to the television shop with Arnold and James, and that James stood outside while the robbery was committed by Pollock and Arnold.

The chief error asserted in behalf of both appellants Pollock and Arnold consisted in the calling of Earl James to the witness stand by the Assistant District Attorney who, after inquiring his age, address and occupation, asked “Do you know the defendant Herbert Pollock? ” At this point the attorney for James, who was present, made the following statement to the court:

‘‘ Mr. Kern: If your Honor please, for the record, I am Michael Kern, with offices at 37 Wall Street. I am an attorney at law. I represent this witness.

‘‘ Without any prefatory statement, the contents of which, if I made the statement, are well known to the District Attorney as well as defense counsel, I want to tell the Court that I have advised this witness to decline to answer any questions pertinent to the issues in this case on the ground that any answer that he might make may tend to degrade and incriminate him.”

Following that the court asked James whether he understood what his lawyer had just said, to which James replied in the affirmative, and the court told this witness that he had a right, under the law, to refuse to answer upon the ground that the answer might tend to incriminate him. The witness answered “ Yes, sir. I know him.” The witness’ attorney then said that the witness evidently did not understand, whereupon the court explained to him in greater detail that he had the right to refuse to answer any question asked by the prosecution if he believed that it would tend to incriminate him. He was again asked whether he knew the defendant Pollock, to which he refused to reply on the ground that it might incriminate him. He was then asked whether his answer would be the same to any question that might be put to him, to which he replied that he refused to answer on the ground that it might incriminate him. Then the Assistant District Attorney said ‘ ‘ Your witness.” After brief cross-examination by Pollock’s trial counsel, in which the witness refused to answer each question on the ground that the answer might tend to incriminate him, the court said: “Do you refuse to answer any questions pertaining to this alleged event of December 14th? ” to which the witness replied ‘‘ Yes, sir. ” Counsel for both appellants demanded that any previous statement made by James be produced by the prosecutor, but the court overruled this demand on the basis that the witness had not testified to anything of substance. The court then instructed the jury: “ The Court: Mr. Foreman and members of the jury, at this time I am instructing you, you are to disregard this witness’ testimony in its entirety. You are not to speculate as to what might he in the witness’ mind, and certainly you are not to speculate as to what answers might be forthcoming were the witness to answer. In other words, you are not to speculate or guess about what this witness might say from the questions that were asked. The questions are not evidence in the case, and the answers—whatever answers he might have made, to the effect that it would tend to incriminate him and degrade him, you are to disregard that entirely. As far as this witness is concerned, disregard his testimony, and by all means, do not let it be prejudicial to either of the defendants on trial.”

Later during the trial, defense counsel moved for a mistrial on the ground that James, whom the confessions of both appellants described as an accomplice, was called to the stand solely in order that the jury might hear him claim his privilege and thereby, in the jurors’ minds, incriminate himself and, by inference, incriminate appellants also. Exceptions were duly taken on behalf of each appellant.

The question appears not to be settled in New York, and the Federal decisions regard this as reversible error in some instances but not in others. In the situation with which we are now confronted, a finding of guilt depends upon confessions or admissions against interest by appellants. Each implicates Earl James as a participant in the robbery which resulted in the killing. Earl James was called, to the witness stand by the prosecution, knowing that he would testify to nothing material without his invoking his privilege. The People argue that it was necessary for them to put him on the witness stand and ask him to testify concerning this crime in order to be freed from any imputation that his testimony would be adverse to the prosecution. Since he would hardly be expected by the jury to testify against his own interest by supporting the prosecution, that argument loses a good deal of weight. The Assistant District Attorney’s position could readily have been safeguarded by a ruling excluding the testimony of Earl James on condition that appellants stipulate that failure to call James was not to be regarded as implying that his testimony would have been adverse to the People’s case, or that anything said to the jury to the effect that omission to call James had any evidentiary significanee would free the prosecution to tell the jury the reason on account of which he was not called.

Whatever may have been the motive of the Assistant District Attorney in calling James to the witness stand, the result was clearly to implant in the minds of the jurors that the facts stated in appellants’ confessions were true, since from refusing to answer questions regarding the robbery upon the ground that his testimony might tend to incriminate him the jury must have concluded that James actually did play the role in these criminal transactions that was assigned to him in Pollock’s and Arnold’s confessions. This was not a situation where Earl James testified to other facts relating to the criminal charge and where his claim of privilege related to some unimportant or collateral aspect. The voluntariness of these confessions was sharply contested by both, and each denied participation in ,the event when called as a witness at the trial. It is apparent that this claim of privilege by Earl James was, in its effect, the most incriminating evidence that was introduced against appellants.

The case of Fletcher v. United States (332 F. 2d 724 [CCA, D. C., 1964]) is almost exactly in point and resulted in a reversal of the conviction. The United States Supreme Court’s decision entitled Namet v. United States (373 U. S. 179 [1963]) is distinguished in Fletcher, as it is distinguishable here, in that in Namet the Supreme Court pointed out that most of the testimony of the witness was not privileged and that an inference of guilt was already well established by the nonprivileged portion of the witness’ testimony. The four questions to which the witness claimed privilege were regarded as incidental or collateral by the Supreme Court and were referred to in the Supreme Court’s opinion as these few lapses ” in the context of the entire trial. Reversing in Fletcher, the District of Columbia. Court of Appeals pointed out that the claim of privilege by the witness was the principal source of support for the testimony of the Government’s only other witness, and that the refusals to testify were not incidents in the course of other admissible testimony since the one claiming privilege gave no other testimony.

The Court of Appeals in the Third Circuit likewise reversed the conviction in United States v. Tucker (267 F. 2d 212 [1959]). There it was held, under the circumstances of that case, that where a witness has been asked a question on a first trial and has asserted his privilege against self incrimination, it is improper on a second trial again to ask the witness the same question when there is no reason to believe that he will answer after refusing to do so at the first trial. The case involved the prosecution of an Army officer on a charge of accepting gratuities with intent to influence his official decisions and actions in connection with the construction of a signal depot. The reversal was based upon other grounds, but “ Because there will be a new trial,” said the court (p. 215), “ another impropriety should be mentioned in order that it may not be repeated.” The court cited United States v. Amadio (215 P. 2d 605) and United States v. 5 Cases (179 P. 2d 519) and said, concerning this, that an interrogating official gravely abuses the privilege against self incrimination where the questioning is for the purpose of ‘‘ eliciting a claim of privilege and thereby creating prejudice against the witness or some other party concerned.”

The most highly articulated opinion on this subject is by Judge Learned Hand, speaking for the majority of a divided court in the Second Circuit, in United States v. Maloney (262 P. 2d 535 [1959]). The court said that when a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused. ‘ ‘ If the prosecution knows when it puts the question that he will claim the privilege,” the court said (p. 537), “ it is charged with notice of the probable effect of his refusal upon the jury’s mind.” The opinion said further: “ The prosecution replies that, if it is forbidden to put the question, the jury may well assume that the witness, if called, would testify for the accused, and that this inference too would be unfair. We must confess that the situation is one in which either alternative results in prejudice to one side or the other; and it is impossible, so far as we can see, to lay down any general rule that will cover all instances. In the case at bar * * * it seems to us that the interest of the accused should prevail over that of the prosecution, and that the judgment should not stand, for the questions touched vital elements of the charge.” The court continued by stating that if the accused at any stage of the trial were to argue that the failure to call such a witness indicated that he or she would not support the charge, the prosecution should be free to disclose the fact that it had reason to suppose that the witness would refuse to testify on the ground of self incrimination.

The court reversed the conviction ostensibly for the reason that the court gave no admonition to the jury that they must not use the refusal to testify as evidence of what the answer would have been. The court conceded (p. 538) that to ask the members of a jury to disregard such a claim of privilege is to impose upon them ‘‘ a task beyond their powers ’ ’, and that the situation is, in substance, the same as when a Judge tells the jury not to consider the confession, or admission, of one defendant in deciding the guilt of another, tried at the same time. But, said the court, “ since it is settled that this rubric will cure that error (Delli Paoli v. United States, 352 U. S. 232 * * *), we do not see why it should not cure the error here. We rest our decision therefore upon the fact that the accredited ritual was not followed; and surely, if it is ever to be taken seriously, there could hardly be an occasion when it was more necessary ”.

In our view the situation is not entirely analogous to where a confession of a codefendant is introduced into evidence which implicates an alleged accomplice. We have ruled in People v. Vitagliano (15 N Y 2d 360) that where several defendants are tried together and no motion for severance has been made a confession should be redacted where the portion of it is severable which implicates a codefendant, but that where the admission of guilt by a defendant is so interrelated in the involvement of an accomplice as to render it impossible for practical purposes to separate them, there is no alternative but to receive the confession and then for the court to instruct the jury to consider it only as against the one who had confessed, disregarding the implication of anyone else in the commission of the crime. We have held in People v. La Belle (18 N Y 2d 405) that reversible error may consist in the denial of a motion for severance and for separate trials of defendants in instances where confessions implicate codefendants, but no motions were made for severance here. Since we consider that a new trial must be had on account of the calling of Earl James in order to put his claim of privilege before the jury, the question of a severance might well be considered by the trial court, on account of these confessions, before appellants are again required to. proceed to trial.

The refusal of the Trial Justice to compel production from the District Attorney’s files of statements previously taken of Earl James was correct. He had testified to nothing of consequence and, therefore, there was no requirement that these statements be produced under People v. Rosario (9 N Y 2d 286).

Although there is much testimony given by appellants with respect to beatings and other forms of coercion in the police station, these were denied by the police officers and these statements have been found as a fact to have been voluntarily given both upon the trial and at the Huntley hearing.

The judgments appealed from should be reversed and a new trial granted as to both of the defendants.

Scileppi, J. (dissenting).

We dissent. Under the circumstances of this case, the court’s clear and forceful instruction to the jury provided the appellants with sufficient protection so that the calling of Earl James to the witness stand by the prosecution did not constitute reversible error.

In Delli Paoli v. United States (352 U. S. 232), the Supreme Court dealt with an analogous situation. The petitioner was one of five codefendants convicted in a joint trial in a Federal court on a Federal charge of conspiring to deal in alcohol. The court admitted in evidence, without deleting references to petitioner, a confession of another codefendant, made after termination of the conspiracy. Although the court plainly charged the jury that the confession was to be considered only in determining the guilt of the confessor and not that of any of the other defendants, the petitioner, nevertheless, contended that the admission of the confession constituted reversible error. The Supreme Court rejected this contention, and said (p. 242): “ It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court’s instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.”

In the case at bar, the court’s instruction to the jury was express, unequivocal, unambiguous and clear. In no uncertain terms it was impressed on their minds that they were to disregard James’ testimony in its entirety; that they were not to speculate on what he may have said had he answered; that “ by all means ” they were not to let his testimony “ be prejudicial to either of the defendants on trial ’ ’; and, finally, that neither the questions nor the answers constituted evidence in the case.

Doubtless, a curative charge is not a panacea for all error committed during a trial or for all prejudicial inferences which a jury might improperly draw from certain testimony but, in this case, we think the charge was sufficient to assure the appellants a fair trial.

After the usual formalistic questions—name, address, occupation—were asked of James, he was asked only two material questions by the prosecutor. The first, did he know Herbert Pollock, which he refused to answer on the ground that it might incriminate him, and the second, would he refuse to answer any other question on the ground that it might incriminate him, to which he answered, yes. Thus, this is not a case where question after question was asked in a blatant attempt to unduly prejudice the defendants in the minds of the jury. It is reasonable to assume that, under these circumstances, the jury could follow the court’s instruction and dispel any prejudice that may have resulted from the episode.

Indeed, in Namet v. United States (373 U. S. 179), relied upon by the majority, “ the U. S. Supreme Court appears to indicate that any prejudice that might result from such an examination can be cured by cautionary instructions to the jury” (United States v. Reincke, 354 P. 2d 418, 420).

Moreover, in Namet, the court made it clear (p. 186) that reversible error is not “ invariably committed whenever a witness claims his privilege not to answer”. Rather, said the court, depending upon the surrounding circumstances in each case, error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege ’ The court specifically pointed to United States v. Maloney (262 F. 2d 535), the prime case relied on by the majority herein, as a case involving prosecutorial misconduct. In Maloney, the court found not alone that the prosecutor called and questioned two key witnesses knowing that they would invoke their testimonial privilege, but that in his closing argument he. attempted to make use of the possible adverse inferences from their refusal to testify.

The present case, of course, is clearly distinguishable. The record discloses no prosecutorial misconduct—only two material questions were asked by the prosecutor, and he did not attempt to capitalize on the refusal to answer.

A second theory for finding reversible error, mentioned in the Namet case(supra, p. 187)—and apparently adopted by the majority of this court—“ seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant ”.

The court again cited Maloney as a case where this theory seems to have been operative, for in Maloney the lower court noted ‘ ‘ that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness ” (373 U. S. 179,187, supra).

It is true, as the majority points out, that the conviction of appellants depended mainly upon their confession to the police. However, unlike the Maloney case, the inferences, which might have been drawn from James’ refusal to testify, were not the only corroboration for the confessions. The testimony of Ida Louise Johnson and Robert Waters, to the effect that, on the night of the alleged murder, they heard Pollock tell James “ that he just stuck up a store ”, that the man put up a good fight and that ‘ ‘ he stuck him ’ ’, clearly tended to corroborate at least the Pollock confession.

The most glaring distinction between this case and Maloney is that, notwithstanding all the theories upon which the court could have reversed, it chose to specifically rest its decision on the ground that a cautionary instruction would have cured the error but none was given.

The remaining cases cited by the majority are clearly distinguishable and should not be controlling here. In United States v. Tucker (267 F. 2d 212) no cautionary instructions were given. In Fletcher v. United States (332 F. 2d 724) the prosecutor called to the stand a juvenile codefendant who had been sent to the National Training School. The prosecutor knew that he would assert his testimonial privilege, yet he flagrantly proceeded to ask him a long series of questions depicting the alleged offense in its entirety. In reversing the conviction, the appellate court noted (p. 727): We do not have to consider whether a clear, forceful instruction to the jury, precluding any inferences from Anderson’s refusals to testify, would have cured the prejudice inherent in the situation. The instruction, which we have quoted seems to have left the situation much in doubt.” In our opinion, the cautionary instruction in this case left nothing in doubt and was sufficient to afford the appellants, under all the circumstances, a fair trial.

In conclusion, we note that we find the People’s argument— that it was necessary for them to ” call James to testify as to the “ crime in order to be freed from any imputation that his testimony would be adverse to the prosecution” — to be valid. The majority suggests that some form of stipulation could have avoided the problem. Perhaps that would be true in another case, but not in this one. Here, the testimony of Ida Louise Johnson and Robert Waters told the jury that Pollock admitted to James that he had robbed a store and “ stuck ” “ a man ’’. The confessions of both appellants are replete with references to James. Surely if juries are made up of reasonably intelligent people, as we must assume they are, the jury in this case may well have wondered why the prosecution did not call James. And perhaps their wonderment would soon have changed to an inference that, had he been called, he would have testified against the prosecution.

Accordingly, the judgments appealed from should be affirmed.

Chief Judge Fuld and Judges Burke and Bergan concur with Judge Van Voorhis ; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Keating and Breitel concur.

Judgments reversed, etc.  