PEOPLE v. MASSIE

OPINION OF THE COURT

R.S. SMITH, J.

The issue here is whether Supreme Court correctly applied the rule that otherwise inadmissible evidence may become admissible where the adverse party has "opened the door" to it by offering evidence, or making an argument based on the evidence, which might otherwise mislead the factfinder (People v Melendez, 55 N.Y.2d 445 [1982]; People v Rojas, 97 N.Y.2d 32 [2001]). In this case, a witness to a robbery identified defendant as the robber on two occasions before trial; the prosecution conceded that evidence as to both pretrial identifications was inadmissible. Supreme Court held that, if defendant chose to cross-examine the witness about the first of the two identifications, the door would be opened to evidence of the second. We hold that Supreme Court did not abuse its discretion.

Facts

A McDonald's restaurant was robbed at gunpoint on October 10, 1998. There were three witnesses to the robbery: Alloma Stewart, the cashier, Teodora Castro, the store manager, and Penelope Gamble, a customer.

On October 16, 1998, Stewart and Castro selected defendant's picture from a number of computer images they viewed at the police station. Stewart and Castro viewed the images together, with no police officer present, and discussed their selection of defendant's photograph with each other. Stewart testified at a pretrial hearing that when she first saw defendant's photograph, "it was 50/50, it could have been him, it could have been other people." After she and Castro put a piece of paper on the picture to simulate a cap, visualized defendant with a brown leather jacket, a white T-shirt and facial hair, and compared the photograph to several others, Stewart became "a hundred percent sure it was him." Stewart and Castro reported their selection of defendant's picture to Detective Brian Costello.

Costello subsequently learned that defendant had been arrested on another charge, and was in jail. He obtained a judicial "take-out order" to remove defendant from Rikers Island and place him in a lineup, but he made no attempt to contact an attorney for defendant; the lineup took place on January 24, 1999 with no defense counsel present. Stewart picked out defendant as the robber, as did Gamble, who had not been present at the viewing of the photographs. Castro did not attend the lineup.

Evidence of the photographic identifications was clearly inadmissible (see e.g., People v Caserta, 19 N.Y.2d 18 [1966]; People v Baker, 23 N.Y.2d 307 [1968]). The prosecution conceded that the absence of counsel at the lineup rendered evidence of the lineup identifications inadmissible also (People v Coleman, 43 N.Y.2d 222 [1977]; People v Sugden, 35 N.Y.2d 453 [1974]), and consented to an "independent source" hearing (People v Dodt, 61 N.Y.2d 408, 417 [1984]). After holding such a hearing, Supreme Court found that Stewart and Gamble had an independent source for their in-court identifications of defendant, and denied a motion to suppress those in-court identifications.

Following the independent source hearing, defendant's counsel made the strategic judgment that it would do defendant more good than harm if the jury learned about the arguably suggestive viewing of the photographs on October 16 — as long as the jury did not also learn about the January 24 lineup. Defendant therefore requested an in limine ruling from the trial judge:1 "If I were to question Miss Stewart or Miss Castro or bring out the fact that there was that type of identification procedure based on the photographs, would that open up the door to the lineup testimony?" Supreme Court ruled that it would, saying that to inform the jury about the photographic identification and not the lineup would be to give it "incomplete information." Defense counsel then said that he would not ask any questions that would open the door, and he did not refer to the photographic identification at trial. Defendant was convicted and his conviction was affirmed by the Appellate Division.2 A Judge of this Court granted defendant leave to appeal, and we now affirm.

Discussion

The leading case in this Court on "opening the door" is People v Melendez (55 N.Y.2d 445 [1982]). That was a murder case in which the key prosecution witness was a man named Marrero. Marrero had previously been a suspect: a "concerned citizen" had told the police that both Melendez and Marrero were involved in the crime (id. at 449).

The arresting officer who had spoken to the "concerned citizen" testified at trial, but of course did not relate under direct examination the informant's hearsay statement (id. at 448). On cross-examination of the detective, Melendez's counsel brought out that Marrero "was a suspect" at one point in the investigation (id.). On redirect, the prosecutor asked on what basis Marrero was a suspect, and the detective was permitted, over objection, to relate the "concerned citizen['s]" detailed allegations about both Marrero (who, apparently, the informant had confused with Melendez's codefendant) and Melendez (id. at 449-450).

We held in Melendez that the cross-examination had "open[ed] the door" to some, but not all, of the hearsay testimony: it was appropriate for the detective to repeat the statements of the informant about Marrero, showing that the police suspicion of him resulted from mistaken identity, but not the informant's accusation of Melendez (id. at 452-453). Noting that "[t]he extent of redirect examination is, for the most part, governed by the sound discretion of the trial court," we made the following observations about when, and how far, questions asked on direct examination may open the door to otherwise inadmissible evidence on redirect:

While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other "opening the door" issues. For example, in People v Rojas (97 N.Y.2d 32 [2001]), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide "door-opening" issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.

Following the approach taken in Melendez and Rojas, we conclude that Supreme Court's ruling here was within its discretion.3 Defendant wanted to bring out before the jury the suggestive nature of the photographic identifications and Stewart's initial uncertainty on viewing the photographs.4 The point of doing this, of course, was to attack Stewart's in-court identification of defendant as the robber — specifically, to suggest to the jury that Stewart could not confidently identify him without being helped or coached. Indeed, defendant's counsel made that suggestion in closing argument at trial even without the help of the photographic identifications: "look at the setting. We're here in a courtroom. I'm the defense attorney. I'm asking the questions. He is sitting next to me. Who else are they going to identify in this courtroom?" If evidence of the photographic identifications, but not the lineup, had been admitted, counsel would have been free to argue that the suggestive in-court identification was preceded by a suggestive viewing of photographs — while the jury remained ignorant that a lineup identification, not in any way suggestive as far as the record shows, occurred between the two.

Supreme Court was well within its discretion in concluding that the course defendant wanted to take would mislead the jury, and that the jury should hear about both of Stewart's pretrial identifications, if it heard about either of them. This is not a case where, to use the words of Melendez, the prosecution offered evidence that was "remote" or "tangential" to the subject matter the defendant brought up. The lineup evidence would have directly contradicted the impression given by the evidence about the viewing of photographs, that Stewart had always needed help to identify defendant as the robber. Thus Supreme Court had ample basis for concluding that the lineup evidence was "necessary to meet" the evidence defendant proposed to introduce.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.