Cite as: The People v. Ronette Ricketts, 128/2011, NYLJ 1202582630002, at *1 (Co., DU, Decided October 24, 2012)

Judge Peter Forman

Decided: October 24, 2012

ATTORNEYS

Counsel for Plaintiff: William V. Grady, District Attorney, Marjorie J. Smith, Esq., Poughkeepsie, NY.

Counsel for Defendant: Gary Greenwald, Esq., Chester, NY.

DECISION AND ORDER

 

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Defendant stands accused by the Grand Jury of the County of Dutchess of the following crimes: Attempted Murder in the Second Degree, a Class B Violent Felony, in violation of §110.00 and §125.25(1) of the Penal Law; and Assault in the Second Degree, a Class D Violent Felony, in violation of §120.05(2) of the Penal Law.

On August 23, 2012, Defendant served the District Attorney with an Amended Notice of Intent to Present Psychiatric Evidence pursuant to CPL §250.10. The Amended Notice identifies Defendant's alleged mental disorder as "Major Depression with Psychotic Features." The Amended Notice also identifies three psychiatric defenses: (1) Defendant was not responsible for the charged crime by reason of mental disease or defect (the "insanity defense"); (2) extreme emotional disturbance; and (3) Defendant's psychiatric disorder negates the specific intent necessary to commit the charged crimes (the "mens rea defense"). Pursuant to the September 12, 2012 Decision and Order of this Court, Defendant served a supplemental notice providing additional information that was not contained in the Amended Notice.

 

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The District Attorney now seeks permission to introduce evidence at trial relating to two instances in which Defendant arguably exercised her right against self-incrimination, and a third instance in which she invoked her right to counsel.1 The District Attorney seeks to introduce this evidence for the limited purpose of rebutting Defendant's proffered psychiatric defense.

Specifically, Defendant was arrested at Poughkeepsie High School by an off-duty City of Poughkeepsie Police Officer, Philip Rutulante, who was working as a security guard at the time of the incident. Prior to her formal arrest, but while in the custody of Officer Rutulante, City of Poughkeepsie Police Officer Lee asked Defendant what happened. Defendant responded by stating that she had nothing to say. After Officer Rutulante placed Defendant in handcuffs and informed her that she was under arrest, Defendant asked Officer Rutulante to read Defendant her rights. Approximately 40-50 minutes later, City of Poughkeepsie Detective David Fernandez advised Defendant of her Miranda rights during a video-taped encounter at the police station. Upon being read those rights, Defendant invoked her right to counsel, and the interview stopped.

The District Attorney concedes that this evidence is not admissible on the People's case-in-chief. However, the District Attorney argues that Defendant's statement to Officer Lee that she had nothing to say, and Defendant's request that Officer Rutulante read her rights to her, and her invocation of the right to counsel after Detective Fernandez read those rights to her, are all probative of Defendant's mental state on the date of the incident. Accordingly, the District Attorney seeks permission to introduce this evidence during cross-examination and on rebuttal.

 

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The District Attorney also concedes that this evidence could only be introduced if accompanied by limiting instructions advising the jury that this evidence can only be considered for purposes of evaluating Defendant's mental state on the date of the incident, and that it cannot be considered for any other purpose.

Defendant opposes the motion on the grounds that her statements to each of the police witnesses were too remote in time and location to be probative of her mental capacity at the time of the stabbing. Defendant also argues that the District Attorney has not shown that her state of mind or her demeanor were the same at the time of the stabbing and at the time that she made these statements. With respect to her invocation of the right to counsel at the City of Poughkeepsie police station, Defendant also argues that this videotaped invocation cannot speak to her state of mind at the time of the stabbing because it was recorded at a later time, at a different location, and in a different and calmer atmosphere. Finally, Defendant argues that evidence that she exercised her right against self-incrimination and invoked her right to counsel has extremely limited probative value, and that the limited value of that evidence is substantially outweighed by the substantial risk of prejudice associated with introducing evidence that Defendant exercised these constitutionally protected rights.

The District Attorney's application was discussed at a court conference conducted on September 12, 2012. In response to an inquiry from the Court, the District Attorney represented that, if asked at trial, its expert psychiatric witness would testify that each of Defendant's three statements to the police is relevant to an assessment of Defendant's mental state and her proffered psychiatric defenses. At the conclusion of that conference, the Court requested that the District Attorney provide a written proffer confirming this representation. The District Attorney

 

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provided that confirmation by letter dated September 14, 2012.

At a court conference conducted on October 18, 2012, the Court shared its preliminary thoughts with respect to the issues raised both by this application and in a separate Huntley hearing that was conducted on October 4, 2012. During that conference; Defendant's attorney and the District Attorney asked for an additional opportunity to provide case law on a number of issues. The Court provided all parties with one final opportunity to submit case law responsive to the issues before the Court, and directed counsel to fax that case law to chambers no later than the end of business on October 22, 2012. Pursuant to that direction, Defendant's attorney faxed the Court with additional case law in a letter prior to the end of business on October 22, 2012.2

DISCUSSION

In making this application, the District Attorney asserts that it has not been able to locate any precedent on the specific issue framed by this application. Although Defendant has cited a number of cases that stand for the general proposition that this kind of evidence cannot be introduced as part of the People's direct case, and that this kind of evidence cannot be used for impeachment purposes in the absence of unusual circumstances, none of these cases squarely address the question presented by the District Attorney's application. The Court's independent research also suggests that this is a case of first impression under New York law.

It is axiomatic that a criminal defendant has the constitutional right to remain silent at the time of his arrest, and that evidence of a defendant's silence or invocation of the right against

 

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self-incrimination at or after the arrest cannot be used by the People as part of their direct case. [People v. Basora, 75 N.Y.2d 992, 993 (1990). See also People v. Knowles, 42 A.D.3d 662, 665 (3d Dept. 2007); People v. Goldston, 6 A.D.3d 736, 737 (3d Dept. 2004); People v. Diggs, 185 A.D.2d 990 (2d Dept. 1992)]. This absolute bar has been established to avoid any risk that this evidence might be used on the People's direct case to improperly penalize a defendant for exercising his constitutional right against self-incrimination, and to avoid the associated risk that this evidence might be used to create a prejudicial inference of consciousness of guilt. [People v. Whitley, 78 A.D.3d 1084, 1085 (2d Dept. 2010). See also People v. Von Werne, 41 N.Y.2d 584, 588 (1977)].

The protection against use of this kind of evidence on the People's direct case is equally available to a defendant who has asserted a psychiatric defense. [People v. Abdul Karim Al-Kanani, 26 N.Y.2d 473 (1970)]. In Al-Kanani, a defendant who was charged with murder asserted the insanity defense. The prosecutor introduced evidence that, upon being questioned about the crime, the defendant asserted his constitutional right to the assistance of counsel. This evidence was introduced on the People's direct case, over the defendant's objection and without any limiting instructions. The Court of Appeals concluded that the introduction of this evidence on the People's main case without any limiting instructions was reversible error, because under those circumstances "its only apparent use was to create an inference of consciousness of guilt." (id. at 478). While acknowledging that the "circumstance that he insisted on seeing a lawyer may have also tended to rebut the defense of insanity", the Court of Appeals emphasized that a defendant who asserts a psychiatric defense is entitled to the same constitutional protections that are afforded to any defendant who is charged with a crime. [id.] Accordingly, the Court of

 

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Appeals held that introducing this evidence on the People's main case without any limiting instructions improperly penalized the defendant for exercising his constitutional rights, and thereby "seriously impair[ed] the value of those protections." [id.]

In Jenkins v. Anderson, 447 U.S. 231, 239-241 (1980), the United States Supreme Court held that the use of a defendant's silence for impeachment purposes does not violate the Constitution. However, the Supreme Court also expressly stated that its decision "does not force any state court to allow impeachment through the use of prearrest silence." [id. at 240]. Accordingly, Jenkins left each state court with the opportunity to formulate evidentiary rules defining those situations in which this kind of evidence is admissible for impeachment purposes, and to evaluate whether the use of this evidence for impeachment purposes is permitted under the state constitution.

In People v. Conyers, 52 N.Y.2d 454 (1981), the Court of Appeals concluded that evidence of a defendant's postarrest silence is not admissible for impeachment purposes "in the absence of unusual circumstances". [id. at 459. See also People v. Mejia, 256 A.D.2d 422 (2d Dept. 1998)]. The Court of Appeals reached this conclusion based upon its assessment that "evidence of an individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth." [Id. at 458. See also People v. Basora, 75 N.Y.2d 992 (1990)]. This assessment rests upon the premise that this evidence is usually ambiguous, and that typically it is equally susceptible to a number of innocent explanations, such as an awareness of one's constitutional rights and a natural caution against saying anything that might be used at trial, a belief that any efforts at exoneration would be futile, explicit instructions from an attorney, or a general mistrust of law enforcement officials. [Id. at 458. See also People

 

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v. DeGeorge, 73 N.Y.2d 614 (1989)]. This assessment also rests upon the premise that there is a substantial risk of prejudice whenever the prosecution attempts to use a defendant's postarrest silence to impeach his trial testimony. [Id. at 459]. Accordingly, the Court of Appeals concluded that evidence of a defendant's postarrest silence is not admissible for impeachment purposes in the absence of unusual circumstances.3

The clear rule that evolves from this case law is that evidence of Defendant's exercise of these constitutional rights cannot be used on the People's direct case, and that the invocation of these constitutional protections also cannot be used for impeachment purposes in the absence of unusual circumstances. However, it is equally clear that there is no absolute prohibition against the use of this evidence for any conceivable purpose. Accordingly, an analysis of the People's application must focus on the following questions: (1) what is the probative value of this evidence under the particular facts and circumstances of this case?; (2) what use do the People seek to make of this evidence?; (3) do the particular facts and circumstances of this case constitute "unusual circumstances" that permit the introduction of this evidence for impeachment purposes?; and (4) can any potential prejudice associated with the introduction of this evidence be sufficiently addressed through the use of carefully crafted limiting instructions?

It is well-settled that evidence of a defendant's conduct and demeanor prior to and immediately after an incident is probative evidence of a psychiatric defense. [See e.g., People v. Roche, 98 N.Y.2d 70 (2002); People v. Caban, 213 A.D.2d 287 (1st Dept. 1995)]. In Roche, the Court of Appeals concluded that a murder defendant's behavior prior to and immediately after

 

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the crime did not support the proffered psychiatric defense. Specifically, the Court of Appeals observed that the proffered psychiatric defense was not supported by evidence that defendant had contrived a false explanation for the victim's wounds shortly after the killing, and that he had "the presence of mind" moments later to gather items in a duffle bag and remove them from the area so they would not be discovered by the police. [Roche at 77]. In Caban, the First Department also concluded that a murder defendant's postarrest confessions rebutted his proffered psychiatric defense because those confessions demonstrated that he "was in full command of his faculties when he brutally murdered the victim by stabbing her approximately thirty-one time and gagging her with a cloth." [Caban at 288].

Here, the People do not seek to use evidence that Defendant exercised these rights for purposes of demonstrating consciousness of guilt. Rather, the People assert that these statements demonstrate that Defendant possessed a presence of mind and a command of her faculties that is inconsistent with her psychiatric defenses. In support of that assertion, the District Attorney has produced a written proffer (at the Court's request) stating that, if asked, the People's expert psychiatric witness, Alan J. Tuckman, MD, would testify that these statements are relevant to an assessment of Defendant's mental state at the time of the stabbing, and of her proffered psychiatric defenses.

The Court has also reviewed the July 30, 2012 report prepared by Dr. Tuckman pursuant to CPL §250.10(4). In that report, Dr. Tuckman expresses a forensic psychiatric opinion that, despite Defendant's history of a Major Depressive Disorder which includes paranoid thinking and vague hallucinations, "the evidence from before, during and after the incident, does indicate that Ms. Ricketts knew and appreciated the nature and consequences of her act and that her act

 

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was wrong, and that this was a purposeful, planned attack." (Report, p. 14). According to Dr. Tuckman, this evidence includes evidence that, shortly after the incident, Defendant "had the presence of mind to refuse to speak with the police and requested that her Miranda rights be read to her, as well as to ask to have an attorney." (Report, p. 14). The Court also notes that Dr. Tuckman repeated these findings in his supplemental report dated September 24, 2012.

The Court of Appeals has recognized that this kind of evidence may have probative value in the context of a prosecutor's attempt to rebut a psychiatric defense. In People v. Abdul Karim Al-Kanani, supra, the Court of Appeals acknowledged that evidence that a defendant has exercised the right against self-incrimination or invoked the right to counsel may tend to rebut the defense of insanity. However, that evidence was ultimately ruled inadmissible in Al-Kanani because the prosecutor sought to introduce it during the People's main case without any limiting instructions, thereby forcing the Court of Appeals to conclude that the only apparent purpose of that evidence was to create an inference of consciousness of guilt. The District Attorney's application in this case does not suffer from the same infirmity.

Specifically, the District Attorney concedes that this evidence is not admissible during the People's main case. The District Attorney also concedes that this evidence may only be admitted on cross-examination or rebuttal if it is accompanied by limiting instructions that provide the jury with clear guidance as to the proper use of this evidence. In addition, unlike the prosecution in Al-Kanani, the District Attorney has provided an evidentiary proffer confirming that its expert witness is prepared to testify that this evidence is relevant to an assessment of Defendant's mental state and her proffered psychiatric defenses.

The District Attorney's intended use of this evidence to challenge a proffered psychiatric

 

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defense is distinguishable from situations in which a prosecutor seeks to use the exercise of a constitutional right solely for impeachment purposes. Stated differently, a different calculus applies when a prosecutor seeks to use evidence of the exercise of a constitutional right to test a defendant's credibility, as opposed to using the exercise of that right as evidence rebutting a psychiatric defense. In the former situation, the prosecutor seeks to satisfy its constitutional burden of proving defendant's guilt beyond a reasonable doubt, in part, by impeaching defendant with his exercise of a constitutional right. In the latter situation, defendant is obligated to prove its psychiatric defense by a preponderance of the evidence, and the prosecutor seeks to rebut that affirmative defense by demonstrating that defendant possessed sufficient presence of mind to exercise his right against self-incrimination or to invoke the right to counsel.

Applying that calculus to the unique facts and circumstances of this case, the Court concludes that Defendant's statements to the police have greater probative value than in the situations typically confronted by the reported case law — i.e., situations in which the prosecutor seeks to use the invocation of a constitutional right to impeach a defendant's credibility, or as a thinly-veiled attempt to encourage the jury to use that invocation as evidence of an implied consciousness of guilt. Here, the District Attorney seeks to introduce this evidence solely for the purpose of demonstrating Defendant's presence of mind, and the command she had over her faculties, during the period of time immediately following the stabbing that is the subject of this indictment. Assuming that introducing this evidence for the limited purpose of rebutting Defendant's psychiatric defense could arguably be interpreted as impeachment evidence, the Court also concludes that this case presents the kind of "unusual circumstances" that justify the use of this evidence for such impeachment.

 

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With respect to evidence that Defendant twice exercised her right against self-incrimination in the high school classroom, the Court holds that this evidence has sufficient probative value to permit its introduction by the District Attorney on cross-examination and rebuttal. Defendant twice exercised this right within minutes of the stabbing, in a classroom located within a matter of feet of the stabbing. The first such exercise was made in response to a general inquiry by Officer Lee when he entered the classroom and asked what happened. The second exercise was an unprompted response to Officer Rutulante's statement that Defendant was being placed under arrest.

Defendant's September 13, 2012 supplemental CPL §250.10 notice asserts that Defendant was exhibiting paranoia, hearing voices, and talking to a blackboard for the period of time that she remained in the classroom following the stabbing, during the same period of time that she made these first two invocations. As a result, Defendant has placed her post-incident state of mind while she remained in that classroom squarely at issue. Therefore, subject to proper limiting instructions, the District Attorney will be permitted to introduce this evidence on cross-examination and rebuttal.

Specifically, this evidence will be admitted for the limited purposes of demonstrating that Defendant possessed the requisite presence of mind and retained sufficient command of her faculties to twice exercise her right against self-incrimination during the same period of time that she was allegedly exhibiting paranoia, hearing voices, and talking to a blackboard. The Court will provide limiting instructions at the time this evidence is introduced advising the jury that everyone in our country has an absolute constitutional right to remain silent, and that the exercise of this constitutional right can never serve as evidence of guilt. The Court will also admonish the

 

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jury that it may not draw any inference against Defendant for exercising that right, that this evidence is being admitted solely for purposes of assessing Defendant's state of mind, and that this evidence may not be used for any other purpose. [See People v. Knowles, 42 A.D.3d 662, 665 (3d Dept. 2007)]. The Court will also repeat these limiting instructions to the jury during final instructions.

Defendant argues that this evidence may not be used on cross-examination or rebuttal because statements that were obtained in violation of the constitutional right to counsel may not be used to rebut a psychiatric defense. [People v. Wilhelm, 34 A.D.3d 40, 50 (3d Dept. 2006)]. In Wilhelm, the People sought to introduce evidence of statements that were improperly obtained from a defendant who was already represented. Specifically, the Third Department concluded that the People could not use these statements for rebuttal purposes because they were obtained after the right to counsel had "indelibly attached." However, Defendant was not actually represented at the time that she made these statements to Officer Lee and Officer Rutulante, and the right to counsel had not indelibly attached. Accordingly, Wilhem does not preclude use of these statements for cross-examination or rebuttal purposes.

Defendant also argues that this evidence may not be used for cross-examination purposes because it seeks to penalize Defendant for invoking her right to counsel under the Sixth Amendment. [People v. Carter, 149 A.D.2d 83, 90 (1st Dept. 1989); People v. Collins, 140 A.D.2d 186 (1st Dept. 1988)]. However, while Defendant twice exercised her right against self-incrimination in the classroom, neither statement included a request for an attorney or otherwise invoked the right to counsel, Defendant was not actually represented, and the right to counsel had not indelibly attached. Also, the prosecutors in Carter and Collins sought to use that evidence

 

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solely for impeachment purposes. Here, the District Attorney seeks to introduce these statements solely for the purpose of rebutting Defendant's psychiatric defense, as evidence of Defendant's state of mind immediately following the stabbing, during the same period of time that the CPL §250.10 notice asserts Defendant was continuing to exhibit manifestations of her psychiatric disorder. Accordingly, Carter and Collins do not preclude use of these statements for cross-examination or rebuttal purposes.

With respect to Defendant's invocation of the right to counsel at the City of Poughkeepsie police station, while evidence of that invocation may tend to rebut Defendant's psychiatric defenses, the Court holds that it does not have sufficient probative value to permit its introduction. Unlike the first two exercises of the right against self-incrimination, the invocation of the right to counsel was made in a different environment, distinct in time and separate in location from the stabbing. In addition, that invocation was neither unprompted nor made in response to a general inquiry. Rather, it was made after Detective Fernandez led Defendant through a full and detailed explanation of her Miranda rights. Finally, Defendant's supplemental CPL §250.10 notice does not assert that Defendant was continuing to exhibit paranoia, hear voices, or talk to inanimate objects by the time that she arrived at the police station. As a result, the District Attorney will not be permitted to introduce evidence demonstrating that Defendant invoked her right to counsel after Detective Fernandez advised Defendant of her Miranda rights. It is therefore

ORDERED, that the District Attorney is precluded from introducing evidence during the People's main case that Defendant exercised her right against self-incrimination; and it is further

ORDERED, that the District Attorney may introduce evidence on cross examination or

 

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rebuttal to show that when Officer Lee entered the classroom at Poughkeepsie High and asked what happened, Defendant responded by stating that she had nothing to say. This evidence will only be admitted on cross examination or rebuttal as it relates to the proffered psychiatric defenses, subject to the Court's limiting instructions; and it is further

ORDERED, that the District Attorney may introduce evidence on cross examination or rebuttal to show that when Officer Rutulante placed Defendant in handcuffs and informed her that she was under arrest, Defendant asked him to read her rights to her. This evidence will only be admitted on cross examination or rebuttal as it relates to the proffered psychiatric defenses, subject to the Court's limiting instructions; and it is further

ORDERED, that the District Attorney is precluded from introducing evidence at trial demonstrating that Defendant invoked her right to counsel after Detective Fernandez advised Defendant of her Miranda rights.

So Ordered.

1. An assertion of the right against self incrimination must be unequivocal and unqualified in order to terminate police questioning. [See People v. Howard, 72 A.D.3d 1199 (3d Dept. 2010); People v. Cole, 59 A.D.3d 302 (1st Dept. 2009)]. While there is ample room to question whether Defendant's assertion that she "had nothing to say" and her request that she be read her rights meet this standard, the Court will treat each of these somewhat ambiguous statements as an attempt to exercise the right against self-incrimination for purposes of this motion.

2. The District Attorney submitted a letter dated October 23, 2012 seeking to respond to the arguments that were made in Defendant's October 22, 2012 letter. Since that October 23 letter was submitted after the deadline imposed by the Court at the October 18, 2012 court conference, it was not considered in the determination of this motion.

3. The Court of Appeals made this determination based solely upon principles of state evidentiary law, and declined to reach the issue of whether the use of this evidence was permissible under the New York State constitution. [id. at 457].