Jurisdictional Statement — Herring v. New York

IN THE

SUPREME COURT OF THE UNITED STATES

1973 TERM

NO.

CLIFFORD HERRING,

Appellant,

~against-

NEW YORK.

JURISDICTIONAL STATEMENT

WILLIAM E. HELLERSTEIN

The Legal Aid Society

119 Fifth Avenue

New York, New York 10003

(212) 677-4224

Counsel for Appellant

DIANA A. STEELE

Of Counsel

IN THE

SUPREME COURT OF THE UNITED STATES

1973 TERM

NO.

CLIFFORD HERRING,

Appellant,

~against-

NEW YORK.

JURISDICTIONAL STATEMENT

TO: THE HONORABLE, THE CHIEF JUSTICE

AND THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF TH. UNITED STATES.

Clifford Herring, appellant herein, respectfully appeals

from a judgment of the Appellate Division of the Supreme Court

of New York, Second Department, entered December 24, 1973,

affirming a judgment of the Supreme Court, Richmond vounty,

rendered on June 15, 1972, convicting him of attempted robbery

in the third degree and sentencing him to an indeterminate term

of imprisonment with a maximum of four years. Appellant submits

this statement to show that this Court has jurisdiction of this

appeal and that a substantial question is presented.

CITATION TO OPINION BELOW

The affirmance by the Appellate Division, Second Department

was without opinion and is not yet officially reported. The

order of affirmance is annexed as Appendix A. On March 22, 1974,

the Appellate Division amended its remittitur to certify that a

constitutional question had been passed upon. The order amending

the remittitur is annexed as Appendix B. Leave to appeal to the

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New York Court of Appeals was denied on January 31, 1974, by

Associate Jvdge Harold Stevens. A copy of the certificate

denying leave to appeal to the Court of Appeals is annexed as

Appendix C.

JURISDICTION

The judgment and order of the Appellate Division was enter-

ed on December 24, 1973. Leave to appeal to the Court of Appeals

was denied on January 31, 1974.

A notice of appeal to this Court was filed on April 8, i974.

This Court's appellate jurisdiction is invoked under 28 U.S.C.

§1257(2).

QUESTION PRESENTED

Whether Section 320.20(3)(c) of the New York Criminal Procedure

Law which authorizes a trial judge to prohibit defense counsel from

delivering a summation in a non-jury trial is, on its face and as

applied, violative of the Fifth, Sixth and Fourteenth Amendments.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendments V, VI, XIV.

STATUTES INVOLVED

New York Criminal Procedure Law, Section 320.20(3): Non-jury

+rial; nature and conduct thereof.

* * .

3. The order of the trial must be as follows:

(a) The court may in its discretion permit the parties

to deliver opening addresses. If the court grants such

permission to one party it must grant it to the other also.

If both parties deliver opening addresses, the people's

address must be delivered first.

(b) The order in which evidence must or may be offered

by the respective parties is the same as that applicable to

a jury trial of an indictment as prescribed in subdivisions

five, six and seven of section 260.30.

(c) The court may in its discretion permit the parties

to deliver summations. If the court grants permission to

one party, it must grant it to the other also. If both

parties celiver summations, the defendant's summation must

be delivered first.

(d) “the court must then consider the case and render a

verdict.

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STATEMENT ar om nmaoen

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Chargec! with attempted robbery in the first and third

degrees and possession of a dangerous instrument, ~ appellant

waived his right to a jury trial pursuant to Section 320.10

of the New York Criminal Procedure Law and on February 3, 4

and 7, 1972, was tried before a justice of the New York Supreme

Court.

The People's Case

According to the complaining witness, Allen Braxton, on

September 15, 1972 at about 5:30 p.m., he was outside his home,

a housing project on Staten Island, transferring some money

from his pants pocket to his wallet when appellant approached

him. Appellant, whom he recognized from the neighborhood, said

in a soft voice, "“[p]lease give me some money, I am sick". When

Braxton refused, appellant took a knife-blade out of his right

pocket and flicked his right wrist at Braxton, whereupon Braxton

ran into his building. The entire encounter lasted approximately

thirty seconds.

Braxton immediately reported the incident to William Stubbs,

a family friend and New York City Housing Authority Policeman. *

Over an hour later, appellant was arrested. A search revealed a

small knife-blade.° Appellant immediately informed Stubbs and

Braxton that he had been working for a Mr. Taylor at the time they

claimed he had robbed Braxton.

The Defense

According to appellant's employer, Donald Taylor, the president

of A&A Tank Cleaning Company on Staten Island, on September 15, 1972,

appellant was at work at 6:00 p.m.. Although unable to swear to the

exact time he had seen appellant on his premises that day, Taylor did

1. New York Penal Law §§110.00/160.10; 110.00/160.05; 265.05.

2. Stubbs was the only other prosecution witness.

3. At the eni of the People's case, the court dismissed the charge

of possessior. of a dangerous instrument on the grounds that the blade

Was too small tc ccms within the purview of the statute.

remember seeing him there at about 5:30 or 6:00 p.m. as well as

later than 6:00 p.m.. He also rememsered talking to appellant

sometime during the evening and before he left for home at about

9:00 or 9:30 p.m.. Less than an hour later, appellant called

him at home and said he had been arrested.

Appellant also took the stand and denied attempting to rob

Braxton. He had been at work until at least 6:30 p.m. and he

also pointed out that the shop was some ten minutes away from

Braxton's home. Appellant further testified that at one time he

had lived next door to Braxton and knew that the latter had been

on arugs.* Indeed, on occasion Braxton had asked him for money

for wine or drugs and when appellant had refused, Braxton had

threatened to "fix" hin.

The Verdict

After both sides had rested and a motion to dismiss the remain-

ing two charges was denied, defense counsel requested an opportunity

to make a closing argument, stating: “Well, can I be heard some-

what on the facts?" The court, relying specifically on the statute

involved herein denied his request, replying: “Under the new statute,

summation is discretionary, and I choose not to hear summation."

Eight minutes later, the court found appellant guilty of attempt-

ed robbery in the third degree. On June 15, 1972, appellant was

sentenced to an indeterminate term of imprisonment with a maximum of

four years.

The Appellate Division, Second Department affirmed the convic-

tion without opinion on December 24, 1973. Leave to appeal to the

Court of Appeals was denied on January 31, 1974.

THE QUESTION PRESENTED IS SUBSTANTIAL

I.

This case presents the serious question of whether the court in

a non- ‘al can prohibit counsel from performing one of the most

basic functions of an advocate, that wf arguing his client's cause

4. Both appellant and Braxton admitted that they had used narcotics.

upon the facts elicited at trial. As the result of New York's

newly enacted provision authorizing such a prohibition, the

‘court precluded a summation in this case and thereby violated

appellant's right to the effective assistance of counsel as well

as his due process right to be heard on the evidence.

The impact of the Appellate Division's decision upholding

the validity of Section 320.20(3)(c) is of broad constitutional

concern. Not only is it contrary to the weight of authority in

those jurisdictions which have concluded that the right of a

defendant in a non-jury trial to have a summation delivered on

his behalf is guaranteed by the Sixth Amendment, but it also dis-

regards a fundamental tenet of our jurisprudence--that closing

argument is basic to the concept of advocacy within our adversary

systen.

Historically, the right of a defendant to have his attorney

deliver a closing argument has developed primarily as a fundamental

component of the right to counsel. This development well preceded

both the advent and constitutional sanctioning of the non-jury trial?

and the application of the Sixth Amendment's counsel provision to

the States.°

As early as 1827, the Supreme Court of Virginia recognized

that even where there was only one unimpeached prosecution witness

and no defense presentation "it is the right of every party to be

heard by counsel on his whole case." Word v. Commonwealth, 30 Va.

(3 Leigh) 743, 759 (1827). Other states readily followed suit, hold-

ing that the right to closing argument was protected by their

individual constitutional provisions guaranteeing the right to counsel. ’

State v. Page, 21 Mo. 257 (1855); Lynch v. State, 9 Ind. 541 (1857);

5. Patton v. United States, 281 U.S. 276 (1930). While there were

instances of jury-trial waivers prior to Patton, they were largely

during colonial times, and by the end of the nineteenth century were

common only in Maryland and West Virginia. See Singer v. United

States, 380 U.S. 24 (1965); Orfield, CRIMINAL PROCEDUR URE FROM ARREST

TO APPEAL 491 (1947); Griswold, The Historical Development of Waiver

of Jury Trial in Criminal Cases, 20 Va. L. Rev. 655 1533-347

6. Gideon v. Wainwright, 372 U.S. 335 (1963).

7. Most of these cases arose in the context of the trial court's

improper limitation of counsel's closing argument.

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Weaver v. State, 24 Ohio St. 584 (1874); Williams v. State,

60 Ga. 367 (1878); State v. Hoyt, 47 Conn. 518 (1880); Wingo v.

State, 62 Miss. 311 (1884); Stewart v. Commonwealth, 117 Pa. 378,

1l A. 370 (1887); People v. Green, 99 Cal. 564, 34 P. 321 (1893);

Seattle v. Erickson, 55 Wash. 675, 104 P. 1128 (1909); People v.

McMullen, 300 Ill. 383, 133 N.E. 328 (1921); Sizemore v. Commonwealth,

240 Ky. 279, 42 S.W. 2d 328 (1931); Hall v. State, 119 Fla. 38,

160 So. 511 (1935); State v. Ballenger, 202 S.C. 155, 24 S.E. 175

(1943). Indeed, even prior to this Court's decision in Gideon,

the Supreme Courts of Oregon and Alabama considered closing argu-

ment to be encompassed by both the federal and state constitutional

guarantees of counsel. State v. Rogoway, 45 Or. 601, 78 P. 987

(1904); Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894).

Today, controversy exists only as to a defendant's right to

a summation when he is tried without a jury. Since approximately

forty percent of all felony trials are without a jury, [Kalven &

Ziesel, THE AMERICAN JURY 16-26 (1966)], the significance of the

issue presented here cannot be minimized.”

The decision below is also contrary to the weight of authority.

In United States v. Walls, 443 F. 24 1220 (6th Cir., 1971), the

court held that preclusion of closing arguments in a non-jury trial

deprived a defendant of the effective assistance of counsel. The

same result was reached in Thomas v. District of Columbia, 90 F. 2d

424 (D.C. Cir., 1937), and in United States ex rel. Spears v.

‘Johnson, 327 F. Supp. 1021 (E.D. Pa., 1971), rev'd. 463 F. 2d 1024

8. Indeed, treatises on trial conduct written during the last

century are virtually unanimous in stating that the right to counsel

encompasses the right to have counsel deliver a closing argument.

See e.g. Hilliard, On New Trials §40 (2nd Ed. 1866); 1 Thompson,

Trials $§921, 955 (1889); 2 Hyatt, Trials §1450 (1924); 5 Wharton's

Criminal Law and Procedure §2077 (Anderson Ed. 1957).

9. Indeed, Indiana has recently proposed a statute derived from and

virtually identical to the New York provision in issue here. Ind.

Code Crim. Proc., Proposed Final Draft §35-6.1-7-1l(c) (3) (September,

1972).

(3rd Cir., 1972) .*° Similarly, a majority of state courts faced

with the issue, before and after Gideon, have held that the

right of an accused to be heard on the evidence in a non-jury

trial is guaranteed by the federal constitution. Peopic v. Thomas,

390 Mich. 93, 210 N.W. 2d 776 (1973); Commonwealth v. Gambrell,

450 Pa. 290, 301 A. 2d 596 (1973); Yopps v. State, 228 Md. 24,

178 A. 2d 879 (1962); Olds v. Commonwealth, 10 Ky. (3 AK Marsh)

465 (1821) .44

A number of courts, however, differ with the majority on

this question. The Fifth Circuit, in a non-jury trial conducted

pursuant to the Federal Juvenile Delinquency Act, has declined to

recognize the right to present a closing argument. West v. United

States, 339 F. 2d 467, 470 (Sth Cir., 1968), cert. denied 393 U.S.

1102 (1969). Likewise, the Illinois Supreme Court has held that

the decision to hear closing argument in a non-jury trial rests in

the discretion of the trial coart. People v. Manske, 399 Ill. 176,

77 N.E. 24 164 (1948); People v. Berger, 284 Ill. 47, 119 N.E. 975

(1918). See also People v. Don Carlos, 47 Cal. App. 2d Supp. 863,

117 P. 2d 748 (1941); People v. Marcias, 130 Cal. App. 2d 860,

279 P. 24 987 (1954). This divergence of authority warrants plenary

review of the issue by this Court.

II.

Preclusion of a defendant's right to a summation in a non-jury

trial seriously undermines the role of his counsel in arguing his

case and thus dilutes his basic right to be heard. An appreciation

10.” The court's reversal was based upon a finding that the trial

court had not, in fact, prohibited counsel from presenting a summa-

1l. TeXas and Ohio, in pre-Gideon decisions, also confronted

issue and held that the right to a non-jury trial “££...

guaranteed by their respective state constitutional rights to counsel

Walker v. State, 133 Tex. Crim. 300, 110 S.W. 24 578 (1937);

Ferqusca v. State, 133 Tex. Crim. 250, 110 S.W. 24 61 (1937); Anselin

Vv. te,

72 Tex. Crim. 17, 160 S.W. 713 (1913 ‘

1l3°Ohio St. 512, 150 N.E. 74 (1925). )+ Decker v. State, —

of the fact-finding process in a bench trial demonstrates thet

closing argument is as crucial to the presentation of a defer.se

as it is in a jury trial. A judge does not differ from a jury

in his ability to retain and to assemble material which has come

before him during the days or possibly weeks of trial. Judicial

training, while affecting legal expertise, does not afford

improved ability to remember or to reconstruct facts accurately.

The fallibility of the human mind afflicts judges as well as

jurors.

Purthermore, a jury, by definition, makes a collective judg-

ment and thereby tends to compensate for the shortcomings of

individual jurors and generally assures a reliable decision. See

Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 4 (1966).

A judge, in contrast, comes to his decision unaided by the recol-

lections or points of view of others. In the absence of summation

by the respective parties, there is no in-put at all into his

Gecision-making process to compensate for the possibility of a pre-

mature decision, to counterbalance any prejudice developed during

tria,>? or to alert him to possible error in his own recollection

of the evidence.

The facts in this case underscore the importance of summation

in the non-jury context. This was a trial which involved four

witnesses, consisted of three days of testimony and extended over a

five-day period. Not only did the defense attack the credibility of

the complainant who admitted prior. drug use and prior familiarity

with appellant, but an alibi was also proferred in which appellant's

ug that judges sitting without a

jury will decide cases on factual material properly before them, the

sively. E.g. United States v. Vaughan, 443 F. 2d 92 (24 Cir.,

¥- Beate, 295 U.R- 40 4% (2n6., 1968). Gemeer a. bees! cies

Vv. ate, Ee er 6 7 Corbett Vv. ta ’ .

- 269, 742 KR. 24 603 (1968); v. Green, 21 Mich. - 575,

175 N.W. 24 521 (1970); le v. P [3 itch. App. 211, 163 N.W.

24 826 (1968). Indeed, even w a e@ presiding over a jury trial

becomes privy to information not properly before him which maj poten-

tially affect the manner in which he charges the jury, this Court has

recognized ihe serious ibility of prejudice. Gregg v. United

States, 394 U.S. 489, 4 2 (1969).

employer testified that at the time of the crime appellant was

at work. The ealy rebuttal to the alibi was that the crime

occurred within walking distance of appellant's place of employ-

ment and it was possible for him to have sneaked out to rob the

complaining witness. Thus, before coming to its verdict, the

court had considerable detail to weigh. Appellant was entitled

to have the relevant and material features of the factual material

adduced placed in perspective by his attorney and not to be left

solely to the mercy of the judge's subjective and impenetrable

view of the case delivered eight minutes later in the form of a

guilty verdict.

In short, closing argument is basic to our adversary system

of criminal justice. It is counsel's final and often sole opportun-

ity to present his analysis of the evidence as a whole on his

client's behalf. This essential right should not be abridged.

CONCLUSION

FOR THE ABOVE REASONS, THE QUESTION PRESENTED IS SUBSTANTIAL,

MERITING REVIEW.

Respectfully submitted,

WILLIAM E. HELLERSTEIN

Counsel for Appellant

DIANA A. STEELE

Of Counsel

April, 1974

has 5 APPENDIX A 5

"*"“and the said appeal having been S755

~~ oh 5 At a Term of the Appellate Division of the Supreme Court

of the State of New York, Second J ucicial Departm ent,

held in Kings Countyon Ucccrcots 24, LVS.

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Set ates cen ey ee

HON, JAMES Db. HOPKINSs

HON. FRED J. MUNDER

HON. M. HENRY MARTUSCELLO

ewes. “J eovvetes > ovctice,

. e: ae TS vas Soden =! Associate Justices D a

HON. FRANK A. GULOTTA \7 _

s SaNrer” aes 07 APs saver? 4 CYiT/

HON, ARTHUR | D. _BRENNAN \ ‘ /

; aan. ~ nav aren ar ast eetaaaet

“s, The People of the State of New York,

we > Order on Appeal from

Judgment of Conviction

+. Clifford Uorrics,

Appellant

In the above entitled action, the abovenamed C2iflozd Uerziaz,

.* .“@efendant in this action, having appealed to this court from a judgment of the Ovp=zcm3

it Court, Tecrmcad County, rendered Si=0 15, 19725

“py Disna A. Stoole,

“Esa. of counsel for the appellant, and o=ceed by Uorosta C. Morse » Esq,,

et counsel for the respondent, and due deliberation having been had thereon; and upon this court's

| decision slip DEREEEIED CUS ENS GUNES O SUPT REEEN, it is:

ORDERED that the judgment appealed from is bent « sGncnicsusiy affiracd,

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Enter:

APPENDIX B

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APPEWDIxX- Bg ~~ DAS

nial. Art +> ig/4 Lr: me APPENDIX C

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At a Term of the Appellate Division of the Supreme Court | om

SriltaRinenCeemyye besceh 22, 1900 state of Aew Work

Court of Appeals

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HON. FRANK A. GULOTTA, Presiding Justice

HON. JAMES D. HOPKINS 7

HON. M. HENRY MARTUSCELLO

HON. SSCS c cK Ta

HON. SSUReeTeccerca ss

HON. SECC SSOC EC Cecont > Associate Justices

HON. v-FREESCED SEE

HON. ARTHUR D. BRENNAN aes Sl '

HON. SESS orssrs .

De Mate oe

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BEFORE: HON. HAROLD A. STEVENS, Associate Judge

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HON. FRED J. MUNDER ; THE PEOPLE OF THE STATE OF NEW YORK

Seee see e222 SEs essesescusssueeaceocaew eee we ee eee eeoeeeees >. CERTIFICATE

B. oqpiast DENYING

The People, etc., fs LEAVE

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Respondent, : ae CLIFFORD HERRING

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Clifford Herring, “4 I, HAROLD A. STEVENS, Associate Judge of the Court of Appeals of the State of New

Appellant. , York, do hereby certify that, upon application timely made by the above-named appellant for a

SEP SPL SLL SSS SESS SSS OOOO SSSSSSSESSenewwa tt

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certificate pursuant to CPL 460.20 and upon the record and proceedings herein,* there is no

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I h b itled he ab d Clifford question of law presented which ought to be retiewed by the Court of Appeals and permission

nm the above entitle cause, the ove nae or

Herring, defendant, having appealed to this court from a to appeal is hereby denied.

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appellant having roved to amend the renittitur of December

24, 1973, so as to state therein that constitutional

questions were presented, namely, whether he was deprived

of his rights under the Fourth, Sixth ond Fourteenth . Bri

Acencments to the Constitution of the United States; "” / / / G /-

Now, upon the papers filed in support of the moticn fils U a

and there being no opposition thereto, and the rotion having

been euly submitted and due deliberation having been had

thereon, it is

January 31,1974

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judgment of The Supreme Court, Richzond County, rendered i

June 15, 1974; end this court, by order dated Decexber 24, pes ee See tod

1973, having unanicously affirmed the juderent; and the a ted at_ ~=New York , New Yor

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Associate Judge

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ORDERED that the motion is hereby granted to the following

extent: decision and order of this court dated December 24,

1973 amended by adding thereto the follewing:

Upon the appeal herein, there was presented and passed

upon the follcwing constitutional question, namely, whether

relator's rights under the Fourth, Sixth and Fourteenth

Auondzents were denied by the trial court's application of

paragraph (c) of subdivision 3 of CPL 320.20 to refuse

appellant permission to deliver a summation. This court

considered appellant's said contention and determined that

none of his constitutional rights were violated.

*Description of Order:

Enter:

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UP. *. %

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BEST COPY AVAILABLE |

IRVING iv, SELKIN

Clerk of Appellate Division

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