Respondents Brief — Herring v. New York

Supreme Court of the Un

Ocroper Term, 1974

No. 73-6587

CLIFFORD HERRING,

Appellant,

—against—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

—

BRIEF FOR RESPONDENT

Joun M. Bratsrep, Jr.

- District Attorney

Richmond County

Attorney for Respondent

County Courthouse

St. George

Staten Island, New York 10301

Tel. (212) GI 7-0049

Norman C. Morse

Assistant District Attorney

Of Counsel

EEE ee

Cedar Street, N. ¥.—Beekman 8-1050-51 <Q 110

Adams Press Corp. 130

TABLE OF CONTENTS

STaTEMENT OF Facts

I. The Trial

A. The People’s Case

B. The Defense

C. The Verdict

IT. Sentence

Point I—Section 320.20 (3) (c) of the Criminal Pro-

cedure Law is constitutional and the trial court’s

refusal to hear summations in this case was proper

ConcLusion

_. Cases Cited

Gault, Matter of, 387 U. S. 1

Grogan v. United States, 394 F. 2d 287

Kent v. United States, 383 U. S. 541

Patton v. United States, 281 U. S. 276

People v. Manske, 77 N. E. 2d 164, 399 Til. 132 (1948)

Singer v. United States, 380 U. S. 24

Smith v. United States, 360 U. S. 1

West v. United States, 399 F. 2d 467 (5th Cir., 1968),

cert. denied 393 U. S. 1102 (1969)

Winship, Matter of, 397 U. S. 358

TABLE OF CONTENTS

PAGE

Statutes Cited

Criminal Procedure Law:

Sec. 320.20 (3) (ce)

See. 320.10 (2) 7

Federal Juvenile Delinquency Act

» eS

IN THE :

Supreme Court of the United States

Ocroser Term, 1974

No. 73-6587

>

—

oa CLIFFORD HERRING,

Appellant,

—against—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

BRIEF FOR RESPONDENT

: {

s

Statement of Facts

Appellant} was charged with attempted robbery in the

first and third*@-grees and possession of a dangerous in-

strument in a three count indictment.

>

I. The Trial

On February 3, 4 and 7, 1972, a trial was held before

the Hon. Theodore G. Barlow sitting without a jury.

. A. The People’s Case

Allen Braxton, the complaining witness, testified that

appellant had attempted to rob him on September 15, 1971

behind Braxton’s home at 7 Markham Drive, part of a

Housing Authority Development on Staten Island.

On that date, Braxton had come home from work and

gone into the house at about 5:30 p.m. Five or ten min-

utes later after greeting his mother and William Stubbs,

a family friend and at that time a Housing Authority

Patrolman, he went out. After he had walked up the

block and returned to the rear of his house, Braxton de-

cided to transfer the eleven dollars in his front pants

pocket to his wallet because he “didn’t want to lose it.”

As he was standing alone behind his house, with the

money in ‘his hand, he claimed appellant approached him

and said in a soft voice “Please give me some money, I

am sick.” Appellant, whom Braxton had known previ-

ously was wearing a suit and did not look sick.

Braxton testified that when he refused to give appel-

lant the money, appellant took a knife out of his pocket

and tried to cut him. Had Braxton not moved away, he

would have been cut. He turned and ran into his house,

not looking to see where appellant went. Braxton esti-

mated that he had been standing behind his hotise about

three minutes before appellant approached him and that

the encounter with appellant lasted about a half a min-

ute. j

Inside ‘his house, Braxton put the money back in his

pocket and discovered that Stubbs was no longer there.

When he found ithe patrolman in a house up the street,

they began looking for appellant. According to Braxton,

Stubbs called a police station and some policeman came

to one of the housing projects a few blocks away. As

rene commen serrate ne

3

Braxton and Stubbs were walking to this project, at about

6:45 p.m. they saw appellant and approached him. A

search of his person revealed the blade of a knife. “After

a while”, appellant voluntarily accompanied them to the

Housing Authority’s police office. Appellant was not hand-

cuffed.

Later that night, Braxton went to the police station

where he heard appellant say he was innocent and. that

he had been working at the time he was accused of having

swung the knife.

’ Although Braxton denied being a heroin addict and

stated that on September 15, 1971, the day of the alleged

robbery he had not used any drugs, he admitted that he

had been using heroin during August, 1971. He also ad-

mitted that one week after the incident he quit his job.

He stated that he was eighteen years old and had had ten

years of schooling. He had been sworn into the Marines

the day before trial.

William Stubbs, the arresting officer, testified that he

had known both appellant and Braxton prior to Septem-

ber 15, 1971. At about 5:00 p.m. he had been in the

Braxton home keeping watch on one of the project build-

ings which had a large drug traffic. He did not recall

seeing Braxton there before he left a little after five to

keep watch from another house.

At about twenty minutes to six, Stubbs left the area

and when he returned, shortly after six o’clock, he saw the

complainant. After they spoke, they began to look for

appellant. First, they checked all of the “Markham

Homes” which took about 20 or 25 minutes. Then Stubbs

went to the police room to notify his brother officer to

keep a lookout for appellant.

After this, Stubbs left Braxton and patrolled the area

by himself. About an hour later, he saw Braxton and

4

appellant on opposite sides of one of the neighborhood

streets. When Stubbs approached, appellant informed

him that he had been looking for him because he had

heard the patrolman wanted to see him. Stubbs then in-

formed appellant of Braxton’s accusation of attempted

robbery and appellant denied it stating that he could not

have done it.

Appellant agreed to accompany Stubbs to the police

office where he was arrested and then searched. Stubbs

found a small knife blade which was introduced into evi-

dence over objection.

Appellant informed Stubbs that he had been working

for Mr. Taylor on Campbell Avenue. Stubbs contacted

Taylor the next morning and testified that Taylor had

said appellant had been working for him at 6:00 p.m.

on September 15, 1971.

At the end of the People’s case, the court dismissed

the charge of possession of a dangerous instrument on

the grounds that the little blade introduced into evidence

did not come within the purview of the statute.

B. The Defense

Donald Taylor, the President of A & A Tank Cleaning

Company at 116 Campbell Avenue on Staten Island tes-

tified that he employed appellant as a truck helper. He

stated that at about 6:00 p.m. on September 15, 1971, ap-

pellant was at work. Taylor was unable to swear to the

exact time he had seen appellant on his premises that day

because it was not his policy to keep his employees under

constant observation. However, he did remember seeing

him there at about 5:30 or 6:00 p.m. on September 15,

1971.

a

5

Taylor stated that on that day he left his company at

about 9:00 or 9:30 p.m. and gone home. He had only been

home an hour when appellant called saying that he had

been arrested.

Appellant testified that he did not approach Braxton

and ask him for money. He had been working on a refrig-

erator in Mr. Taylor’s shop until at least 6:30. Stubbs

arrested him between 7:30 and 8:00, just after Mr. Tay-

lor had “dropped him off” after work.

Appellant stated that he knew Braxton as a small boy

and had also lived next door to him for a few months

when appellant stayed with his parents at 9 Markham

Drive. He stated that it was about a ten minute walk

from. Taylor’s company to Braxton’s house. Appellant

also knew that Braxton had been on drugs. He stated

that Braxton occasionally had asked appellant for money

for drugs or wine and that appellant generally refused

and told him to get work. On some of the occasions

Braxton had threatened to “fix” appellant.

Appellant admitted that he had used drugs at one time

and that in 1970 he had been twice convicted of petit lar-

ceny and once of possession of a hypodermic instrument.

He stated that he was in the army from 1951 until 1955

when he was honorably discharged.

C.. The Verdict

At the end of the defense case, counsel moved to dis-

miss the two remaining counts of the indictment on the

grounds that the People had not made out a prima facie

ease and had failed to prove appellant’s guilt beyond a

reasonable doubt. Both motions were denied after which

counsel asked:

“Well, can I be heard somewhat on the facts”.

~

and the Court responded:

“Under the new statute, summation is discretion-

ary, and I choose not to hear summations.”

After eight minutes of deliberation, the court found ap-

pellant guilty of attempted robbery in the third degree

and acquitted the appellant of the count of attempted rob-

bery in the first degree.

II. Sentence

On June 15, 1972, appellant was in court for sentenc-

ing. ‘The prosecutor recommended the maximum term

because he said appéllant had a “long extensive criminal

record”. Appellant’s attorney requested leniency and re-

minded the court of the sharp issues of fact at trial.

Appellant was sentenced to a maximum of four years

imprisonment and is presently on parole. His conviction

was affirmed in the state courts. The Supreme Court of

the United States noted probable jurisdiction on October

21, 1974.

POINT I :

Section 320.20 (3) (c) of the Criminal Procedure

Law is constitutional and the trial court’s refusal to

hear summations in this case was proper.

L

New York State is the only state with a statute of this

kind. Undoubtedly there are cases in other jurisdictions

in which the denial of a right to sum up constitutes re-

versible error. The appellant has cited a number of them.

7

But none of these cited cases appear to have the express

statutory groundwork of New York. In the cases cited

there is no statute at all and there is only a so called im-

plied right to make an argument. In New York the de-

fendant who waives a jury trial is on notice that he may.

have to surrender the right of summation. Having ac-

cepted the non-jur,” trial he takes it with all of its rami-

fications. The waiv-r of the jury trial was in writing exe-

cuted by the appellant and in open court pursuant to

statute (Criminal Procedure Law Section 320.10(2)).

There are moreover many cases in which courts have

ruled that the denial. of closing argument in a non-jury

trial does not constitute reversible error.

In People v. Manske, 77 N E 2d 164 at 170, 399 Ill. 132

(1948) the Supreme Court of Illinois stated,

“(12) It is also claimed that the trial court com-

mitted reversible error in declining to hear argu-

ment after the evidence was concluded. As a gen-

eral rule, in a trial by the court without a jury, we

are of the opinion that it is advisable in most in-

stances for, the court to listen to argument ‘of coun-

sel, even though it does not appear to be helpful

to the court. The testimony was all taken in the

presence of the trial judge; he had the opportunity

to see and to hear the witnesses, and to observe the

attitude and manner of testimony of the defend-

ant. He could observe wherein he’ was contradict-

ing his statements in court with those made to the

officers, and could more properly judge the weight

to be given the same than could we. It was per-

fectly natural for the defendant, after the body

of the deceased was discovered, and the evidence

of the bruises found upon her body, to soften as

much as possible the description of the assaults,

which he admits were committed.

8

(13) We are of the opinion that the argument of

,counsel in this particular case would not have

aided the court very much. The same point was

made in People v. Berger, 288 Ill. 47, 119 N.E.

975, and there the distinctioi was made between

arguments before a court without a jury, and it

was held argument to a jury was matter of right,

but argument before a court, alone, was largely a

matter of sound discretion of the trial judge. In

this particular case the court believed the evidence

sufficient to convict the defendant of manslaughter,

and after so announcing told his counsel he would

be heard upon the question of punishment, but de- '

clined to hear any argument upon the guilt of. the

defendant.,

We are thoroughly satisfied of the guilt of the de-

fendant beyond a reasonable doubt, and do not be-

lieve that the defendant was prejudiced in any way

by the court declining to hear argument upon the

merits of the cause.”

The court exercised reasonable discretion in this case

in not hearing summations. The case was a simple one.

Only two people were present according to the’ victim.

The defense was alibi but the alibi witness was vague

about the time he saw the appellant. And of course the,

alibi location was in fact close to the scene of the crime.

~~In the course of the trial the judge dismissed two of three

charges.

In West v. United States, 399 F. 2d 467, 470 (5th Cir.,

1968), cert. denied 393 U. S. 1102- (1969), it was held’ that

in a non-jury trial conducted pursuant to the Federal

Juvenile Delinquency Act a trial court has the right to

preclude a closing argument. It is clear that proceedings

— juveniles ‘receive the basic constitutional protec-

/

——-__——

9

tions. The juvenile is entitled to an attorney to pro-

tect his rights and to the right of confrontation and cross

examination (Kent v. United States, 383 U. S. 541). He

may not be adjudged a delinquent unless the proof is be-

yond a reasonable doubt. (Matter of Winship, 397 U. S.

358). Confessions taken in violation of his constitutional

rights may not be introduced against him. (Matter of

Gault, 387 U. S. 1, 55). In short, at the same time that

this Court was strengthening and clarifyiug the rights of |

juveniles concerning their vital. constitutional rights, by

denying certiorari in West v. United States supra, it was

stating, in effect, that where the case is tried without a

jury that the judge may decline to hear summations. Sum-

mations in such cases are not such a critical step in the

fact finding process so that denial of summation can’ be

said tc be violation of due process.

This question of the right to summarize should be left

to the sound discretion of the trial court. In many in-

stances hearings held prior to trial concerning, for ex-

ample, searches and seizures, confessions or admissions,

or wire taps and their supporting orders may be of

greater significance than the trial itself insofar as the

final disposition of the case. But respondent is unaware

of any case which holds that the denial of argument is a

denial of due process.

IL.

_ Constitutional rights may be waived. For example in

Patton v. United States, 281 U.S. 276, 305 the Court held

in a case where the defendant consented to proceed with

eleven jurors as a result of the illness of the twelfth and

was convicted.

10

“See also State v. Sackett, 39 Minn. 69, where the

court concludes its discussion of the subject by say-

ing (p. 72):

‘The wise and beneficent provisions found in

the constitution and statutes, designed for the

welfare and protection of the accused, may be

waived, in matters of form and substance, when

jurisdiction has been acquired, and within such

limits as the trial court, exercising a sound dis-

. cretion in behalf of those before it, may permit.

The defendants, having formally waived a juror,

and stipulated to try their case with 11, cannot

now claim that there was a fatal irregularity in

their trial.’”

In Smith v. United States, 360 U. S. 1, 9 the right of a

defendant to waive the constitutional right of indictment

pursuant to the Federal Rules of Criminal Procedure was

recognized :

“The use of indictments in all cases warranting

serious punishment was the rule at common law.

Ex parte Wilson, 114 U. S. 417; Mackin v. United

States, 117 U. S. 348. The Fifth Amendment made

the rule mandatory in federal prosecutions in rec-

ognition of the fact that the intervention of a

grand jury was a substantial safeguard against

oppressive and arbitrary proceedings. Ex parte

oon 121 U. S. 1; Hale v. Henkel, 201 U. S. 43;

oth v. Quarles, 350 U. S. 11, 16. Rule 7(a) rec-

ognizes that this safeguard may be waived, but

only in those proceedings which are noncapital.”

In Singer v. United States, 380 U. S. 24 at pages 34 and

35 the Court stated:

4

il

“Thus, there is no federally recognized right to

a criminal trial before a judge sitting alone, but

a defendant can, as was held in Patton, in some

instances waive his right to a trial by jury. The

question remains whether the effectiveness of this

waiver can be conditioned upon the consent of the

prosecuting attorney and the trial judge.

The ability to waive a constitutional right does

not ordinarily carry with it the right to insist upon

the opposite of that right. For example, although

a defendant can, under some circumstances, waive

his constitutional right to a public trial, he has no

absolute right to compel a private trial, see United

States v.. Kobli, 172 F. 2d 919, 924 (C. A. 3d Cir.

1949) (by implication); although he can waive his

right to be tried in the State and district where

the crime was committed, he cannot in all cases

compel transfer of the case to another district, see

Platt v. Minnesota Mining & Mfg. Co., 376 U. Sm

240, 245; Kersten v. United States, 161 F. 2d 337,

339 (C. A. 10th Cir. 1947), cert. denied 331 U. S.

851; and although he can waive his right to be

confronted by the «witnesses against him, it has

never been seriously suggested that he can there-

by compel the Government to try the case by stipu-

‘lation. Moreover, it has long been accepted that

the waiver of constitutional rights can be subjected

to reasonable procedural regulations: Rule 7 (b)

of the Federal Rules of Criminal Procedure sets

forth the procedure to be followed for waiver of

the right to be prosecuted by indictment; Rule 20

describes the procedure for waiver of the right to

be tried in the district in which an indictment or

information is pending against a defendant; and ~

Rule 44 deals with the waiver of the right to coun-

se ” Sas

12

Even such a deep seated right of a defendant not to

be twice put in jeopardy for the same offense can be

waived by failure to assert it (Grogan v. United States,

394 F. 2d 287).

‘We can deduce from these cases that if a person has

no federally recognized right to a trial before a Judge

sitting alone that he cannot engraft upon such a trial the

procedures of a jury trial.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

Joun M. Bratstep, JR.

District Attorney

’ Richmond County

Attorney for Respondent

Norman C. Morse

Assistant District Attorney

Of Counsel