Silence Isn’t Inconsistent

In a quirky decision, the Appellate Division, Second Department  reversed the Staten Island attempted murder conviction of Henry Tucker based upon the prosecution’s use of his post-arrest, post-Miranda silence to contradict his trial testimony fingering another man, “Mustafa,” as the shooter.  From the New York Law Journal :


When arrested in connection to an October 2008 Park Hill double shooting, Henry Tucker refused to answer any questions after being read his Miranda rights.


A police officer then told him he would be charged with two counts of attempted murder, prompting Mr. Tucker to say, “I was there, but I didn’t shoot anybody.”


Mr. Tucker made no further statements until his June 2009 trial, when he again maintained he was present but not the shooter. He instead fingered his friend, an unapprehended man named “Mustafa.”


The typical argument by the prosecution when a defendant offers testimony at trial that exculpates himself is recent fabrication, meaning that given the time between arrest and trial, he invented a story that gets him out of the jam.


To impeach Mr. Tucker, prosecutors at cross-examination repeatedly questioned whether he had told police that Mustafa was the shooter. On summation, Assistant District Attorney Kathleen Naughton told jurors that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”

The argument was that if Tucker’s claim at trial was truthful, he would have spoken up at the time of his arrest.  His failure to do so, to pin the blame on Mustafa, when he did blurt out that he wasn’t the shooter, undermines the credibility of his trial testimony.

The majority held, notably in contrast to the United States Supreme Court’s  misguided  decision in  Berghuis v. Thompkins, that Tucker’s refusal to answer questions wasn’t converted to a response by his denial of guilt.


“[H]aving deliberately availed himself of his right to remain silent, the defendant’s failure to give a more complete exculpatory statement to the police ‘may simply [have been] attributable to his awareness that he [was] under no obligation to speak’ to the police, including to implicate his friend in a shooting, and to his knowledge that his decision not to speak would not be used against him at trial,” the majority said in an unsigned opinion, citing the 1981 Court of Appeals ruling People v. Conyers, 52 NY2d 454.


Rather than go down the road of the minefield that the Supreme Court has crafted around the invocation and exercise of Miranda rights, the majority concluded that once a defendant chooses silence, it means something and won’t be so easily ignored.

In dissent, Justice Reinaldo E. Rivera wrote:


“Where, as here, a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant’s credibility may properly be impeached with that omission,” he wrote, adding that the evidence against Mr. Tucker was overpowering.

While the majority failed to see the evidence as particularly overwhelming, it didn’t dispute that a defendant’s credibility can be impeached by a prior omission that suggests that his trial testimony is a recent fabrication.  Rather, the court held that the exercise of his right to remain silent and refuse to answer questions cannot be used, even as a means of challenging Tucker’s “Mustafa” revelation.  The right to remain silent, once invoked, cannot be used against a defendant for any purpose.

What’s significant about this decision is that firmness of the court’s holding in light of the ongoing federal mushiness of Miranda invocations.  As the Supreme Court appears bent on dismantling Miranda, turning its exercise into a hypertechnicality rather than a shield to protect constitutional rights, the Second Department both strongly backed its invocation, without the subsequent exculpatory blurt somehow undoing the certainty of invocation by silence, and similarly held firm on the notion that the defendant’s enjoyment of a constitutional right cannot be used against him, even when it proves highly material to his credibility.

Of course, while the majority held that the evidence aside from the silence used to impeach the defendant’s credibility was not so overwhelming as to preclude its finding that there was a reasonable possibility that he would have been acquitted, Tucker will still face retrial, and the other evidence, eyewitness identifications of him as the shooter, plus video and still images of the shooting.  It would be highly premature to say that Tucker’s out of the woods.

Still, given the evidence against him, the strength of the majority decision is certainly worthy of note, and supports the vitality of New York’s independent constitutional protections of a defendant’s right to remain silent, and ability to exercise his Constitutional rights without fear that it will come in through the back door to bite him in the butt. 

The win by Kathleen E. Whooley of Appellate Advocates promises Tucker a fairer trial, but it’s still going to be a huge uphill battle.

4 thoughts on “Silence Isn’t Inconsistent

  1. AG

    Seems the right result to me. Any other result would make no sense considering a conditional waiver has to be honored.

    But I don’t think whether there was other evidence is relevant to the decision. And it makes bad law.

    The nature of the crime or strength of evidence should never be a consideration in determining whether a right has been violated, or whether its invocation can be used against a defendant.

    There’s a huge problem with such a results-driven approach. One of the main reasons given for these rights is the protection of the innocent by providing a credible, reliable process. At least that’s really what’s behind the reasoning that has been used, e.g., involuntary confessions, the power of interrogation psychology, and violations of ethics, depending on what right we’re talking about, they all come down to a question of reliability, credibility and integrity.

    Take Brewer, for example. Burger in dissent stressed the fact that “defendant is guilty of the savage murder of a small child”—as if it weighed on the question of whether or not the defendant had waived previously invoked rights.

    Guess what? The Court made the right decision and excluded the evidence, but Williams was convicted at his second trial. If we allowed the severity of the alleged conduct to factor into constitutional questions, that is, if Burger got his way, all of us would be a little bit lighter on rights for no reason at all—because the conviction Burger wished to preserve by changing the rule would have occurred either way.

    What if the evidence against Tucker wasn’t strong? The threat of a murderer getting off scot free (or however free one is after suffering through a whole trial during which you were made an accessory to your own conviction) would certainly have swayed someone with Burger’s “sensibilities.” I’d be more surprised at this decision if the conviction hinged on the silence-as-impeachment.

    An interesting aside, there’s some evidence that Williams might not have committed the crime, that another man (who died shortly after the first trial) might have been responsible for her sexual abuse and death, and that Williams plausibly panicked when he found her dead and decided to dump the body. If Burger got his way, we’d not only have fewer rights to preserve a conviction that would have happened on the second try anyway, of a man who might not have done it anyway.

  2. SHG

    It can be relevant when, even in the absence of a constitutional violation, the evidence is overwhelming such that the result would have been the same. I don’t like it, but that’s how it happens.

    The more important element, and this is pragmatism over doctrine, is that the strength of the case has a definite impact on a judge’s willingness to have an open mind on the substantive legal issues.  Bad cases, bad defendants, tend to make judge less sympathetic to arguments.  Again, it shouldn’t be that way, but it is.

  3. AG

    I understand harmless error. That’s an inquiry entirely apart from the constitutional question. Either decide it right, or don’t decide it at all, then apply harmless error and uphold the conviction. It shouldn’t weigh on the merits.

  4. SHG

    I’m less tolerant of harmless error, actually.  I consider the lowest of cop outs, and anathema to the concept of trial by jury.  It’s not up to a court to recreate the trial evidence and find a defendant guilty.  Whether the evidence is overwhelming is the province of the jury, not an appellate panel.

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