People v. Pavone, No. 199 (N.Y. Dec. 17, 2015)

The use of a defendant’s silence after being Mirandized, to challenge his credibility regarding a potential defense, violates the due process clause of the New York State Constitution.

Summary

Anthony Pavone was convicted of first-degree murder. At trial, he presented an extreme emotional disturbance (EED) defense. The prosecution used Pavone’s post-Miranda silence to challenge his credibility regarding the EED defense. The Court of Appeals of New York held that this violated the New York State Constitution’s due process clause because it penalized Pavone for exercising his right to remain silent, as guaranteed by the state constitution. Although the court found constitutional error, it held that the error was harmless because the evidence against the EED defense was overwhelming. The court also rejected Pavone’s claims of ineffective assistance of counsel.

Facts

Pavone shot and killed his former lover, Patricia Howard, and her new partner, Timothy Carter. Pavone admitted to the shootings, but he claimed he was acting under an EED, stating he was in a state of depression and lost rational control. The prosecution presented evidence that Pavone had stalked Howard, left her several messages, and was jealous of her relationship with Carter. Evidence included phone messages, forensic evidence, and witness testimony. The prosecution also highlighted Pavone’s actions after the murders, including fleeing the scene, removing the battery from his phone, and surrendering to police after a period of time. Expert testimony was presented by both sides regarding Pavone’s mental state.

Procedural History

Pavone was convicted on all charges at trial. The Appellate Division affirmed the conviction, concluding that the admission of the testimony regarding Pavone’s post-Miranda silence was harmless error, and that he failed to establish his EED defense. The dissent argued that the evidence against the EED defense was not so overwhelming to support a conclusion that there was no reasonable possibility that use of defendant’s silence affected the jury’s rejection of the defense. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the prosecution’s use of Pavone’s post-arrest silence to challenge his credibility violated his constitutional rights.
2. Whether Pavone received ineffective assistance of counsel due to counsel’s failure to object to the use of his silence and failure to provide expert witnesses with recordings.

Holding

1. Yes, because using a defendant’s post-Miranda silence to challenge the credibility of his defense violates the New York State Constitution’s due process protections.
2. No, because Pavone received meaningful representation under the state constitution.

Court’s Reasoning

The court found that the New York State Constitution provides broader protections than the Federal Constitution in cases involving individual rights. The court cited New York’s long-standing rule that a defendant’s silence at the time of arrest cannot be used against him. The court held that the implied promise in Miranda warnings that a defendant’s silence will not be used against him is a violation of due process under the state constitution. The court reasoned that a defendant’s silence has ambiguous probative value, and the prejudice to the defendant in such circumstances outweighs any probative value. Although the court found constitutional error, it held that the error was harmless, as there was overwhelming evidence that Pavone did not suffer from EED at the time of the murders. The court also found no merit in Pavone’s ineffective assistance of counsel claims, concluding that counsel’s actions were strategic choices and did not prejudice the defense.

Practical Implications

This case emphasizes that, in New York, prosecutors cannot use a defendant’s post-arrest silence, even for impeachment purposes, as it violates the state’s due process protections. This ruling requires attorneys to be vigilant in objecting to any attempt by the prosecution to introduce such evidence. Additionally, defense attorneys must be mindful of how their actions might be perceived if a defendant’s silence is brought up at trial. This decision also clarifies that a defendant does not open the door to questions about post-Miranda silence just by stating that his or her memory is affected by the trauma of events. This case underscores the broader protections afforded by the New York State Constitution.