People v. Victory, 33 N.Y.2d 75 (1973)

In felony murder cases, the burden of proving an affirmative defense rests on the defendant, and a witness’s prior omission of a fact can only be used for impeachment if their attention was specifically drawn to that fact during the prior statement.

Summary

Albert Victory and Robert Bornholdt were convicted of felony murder after Bornholdt shot and killed a police officer during an altercation following a traffic stop. The New York Court of Appeals upheld Victory’s conviction, ruling that the affirmative defense in the felony murder statute did not violate his constitutional rights and that the trial court did not abuse its discretion in limiting the use of a witness’s prior statements for impeachment. The court emphasized that the burden of proving an affirmative defense lies with the defendant and that prior omissions can only impeach a witness if they were specifically asked about the omitted fact previously.

Facts

Patrolman Varecha pursued a speeding car driven by Victory with Bornholdt as a passenger. He stopped them near a discotheque. An altercation ensued when Varecha asked for Victory’s license and registration. Victory kneed Varecha in the groin, and both Victory and Bornholdt physically assaulted him. Varecha announced their arrest. As Victory backed away, Bornholdt shot Varecha multiple times, resulting in his death. Both were apprehended shortly after.

Procedural History

Victory and Bornholdt were jointly tried and convicted of felony murder and intentional murder respectively. Victory was sentenced to 25 years to life. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals by leave of an Associate Judge.

Issue(s)

1. Whether Victory’s guilt of felony murder was proven beyond a reasonable doubt.
2. Whether the affirmative defense provision in the felony murder statute is constitutional.
3. Whether the trial court properly denied Victory’s motion for severance.
4. Whether the court’s rulings limiting the use of prior statements on cross-examination were proper.

Holding

1. Yes, because there was sufficient eyewitness testimony to prove all elements of felony murder, including Victory’s participation in the underlying felony of escape.
2. Yes, because due process does not prevent shifting the burden of persuasion to the defendant for affirmative defenses, especially when the relevant facts are within the defendant’s knowledge.
3. No, because Victory did not adequately show the need for his co-defendant’s testimony or that it would exculpate him, and the motion was untimely.
4. No, because Victory failed to show that the witness’s attention was specifically called to the omitted facts during prior statements.

Court’s Reasoning

The court found ample evidence to support Victory’s felony murder conviction, stating that Victory participated in the assault and subsequent escape attempt during which Bornholdt killed the officer. The court rejected the constitutional challenge to the affirmative defense, stating that “the components of the statutory defense before us are peculiarly within the knowledge of the defendant, and are matters upon which he may be fairly required to adduce supporting evidence.” The court reasoned that requiring the prosecution to disprove these elements would unduly enlarge the scope of their proof. Regarding the severance motion, the court stated that Victory failed to show how Bornholdt’s testimony would aid his defense and that the motion was untimely. “A motion for a separate trial is directed to the sound discretion of the trial court, subject to review only for an abuse thereof.”

Finally, the court addressed the limitation on cross-examination, stating that while prior inconsistent statements can be used to impeach a witness, “a witness may not be impeached simply by showing that he omitted to state a fact, or to state it more fully at a prior time. It need also be shown that at the prior time the witness’ attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial.” The court reasoned that unless specifically asked, a person may naturally omit facts from a narrative description. Victory failed to meet this requirement.