People v. Berg, 59 N.Y.2d 294 (1983)

A trial court has discretion to permit the prosecution to call a witness who has indicated an intent to refuse to testify, provided the State’s interest in calling the witness outweighs the potential prejudice to the defendant, and curative instructions are given to the jury.

Summary

Defendants Berg and Lovacco were convicted of assault and weapons possession. A key witness, Iovino (the victim), initially agreed to testify but later refused. The prosecution called Iovino to the stand, where he refused to answer questions, despite the court’s orders. The trial court then gave a curative instruction to the jury, telling them not to speculate about Iovino’s refusal to testify. The Appellate Division reversed the convictions, but the New York Court of Appeals reversed again, holding that the trial court did not abuse its discretion in allowing the prosecution to call Iovino, given the circumstances and the curative instruction. The Court of Appeals emphasized the strong evidence against the defendants and the prosecutor’s good faith in attempting to elicit Iovino’s testimony.

Facts

A police officer witnessed three men assaulting Iovino. The assailants fled in a car, and after a brief chase, Lovacco was apprehended. Berg was arrested nearby and identified as one of the assailants. Iovino was found with his mouth taped and hands cuffed behind his back. Iovino initially agreed to testify but later became reluctant.

Procedural History

The defendants were convicted in the trial court. The Appellate Division reversed the convictions, finding that calling Iovino as a witness after he stated he would not testify was prejudicial error. The People appealed to the New York Court of Appeals, which reversed the Appellate Division and reinstated the original convictions.

Issue(s)

Whether the trial court abused its discretion by allowing the prosecution to call a witness (Iovino) who had already indicated he would refuse to testify, thereby potentially prejudicing the defendants.

Holding

No, because the trial court did not abuse its discretion in allowing the People to call Iovino as a witness, considering the State’s interest in attempting to induce the witness to testify and the curative instructions given to the jury.

Court’s Reasoning

The Court of Appeals stated that the decision to permit the People to call a reticent witness is within the trial court’s sound discretion. The court must balance the State’s interest in calling the witness against the possible prejudice to the defendant. The Court noted two factors that could indicate reversible error: (1) the prosecutor’s motive in calling the witness was to have the jury draw unwarranted inferences, and (2) the inferences from the refusal to testify added critical weight to the prosecution’s case in a form not subject to cross-examination.

Here, the court found no evidence of prosecutorial misconduct. The prosecutor made a good-faith effort to elicit Iovino’s testimony, even offering immunity. The court emphasized that Iovino had been cooperative until the last minute and never explicitly stated he would refuse to answer questions. Furthermore, the People’s case was strong, based on the testimony of the police officer who witnessed the assault. The prosecutor did not exploit Iovino’s refusal to testify.

The Court also found that any unfavorable inferences drawn from Iovino’s refusal would have little bearing on the jury’s decision, given the strength of the other evidence. The court’s curative instruction, directing the jury not to speculate about Iovino’s reasons for refusing to testify, was deemed sufficient to dispel any unwarranted inferences. The Court explicitly stated: “The importance, as well as the effect, of curative instructions in such a case cannot be underestimated, as we depend, for the integrity of the jury system itself, upon the willingness of jurors to follow the court’s instructions in such matters.”

Therefore, the Court of Appeals concluded that the trial court did not abuse its discretion in allowing the People to call Iovino as a witness, given the circumstances, the strong evidence against the defendants, and the curative instruction provided to the jury.