Opinion
233-2012
09-23-2013
The People of the State New of New York, Plaintiff, v. Paul Novak, Defendant.
APPEARANCES: Gary Greenwald, Esq. Greenwald Law Offices Attorney for Defendant Hon. James R. Farrell Sullivan County District Attorney Attorney for the People Stephen F. Lungen, Esq. Special Prosecutor, to the District Attorney
APPEARANCES: Gary Greenwald, Esq.
Greenwald Law Offices
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
Attorney for the People
Stephen F. Lungen, Esq.
Special Prosecutor, to the District Attorney
, J.
After seven weeks of jury trail on charges of Murder in the First Degree, and other felonies, and the defendant rested its case the People now seek to call a pathologist, among other witnesses in rebuttal. In the People's case in chief two pathologists testified to the autopsy of the victim and the cause and manner of death. It is the People's intention to call Dr. Michael Baden as a rebuttal expert witness. The People seek to have Dr. Baden testify in rebuttal to the following areas:
The renowned N.Y.C. Pathologist and star of many T.V. commentaries.
1.The need for a forensic pathologist to obtain as much information as possible from the police, statements of witnesses, and other investigatory agencies before formulating any ultimate opinion or conclusion. Dr. Wetli clearly stated that he was not interested in any of the surrounding circumstances of the investigation, stating that "in my opinion [that is] superfluous to my role" and, further, that such information is not important to him.
The Defendant's highly qualified pathologist.
2.The importance of observing the victim at the location of the fire and what, if any, opinion or conclusion can be drawn from that alone. Dr. Wetli stated that these facts did not matter to him and he knew, just by observing photographs that the victim was dead before the fire, without the need for an autopsy or blood work, and he stated that opinion "absolutely."
3.Explain to the jury that the degree of charring played a significant role in a forensic pathologist's ability to determine what injury might have existed around the neck region in order to determine asphyxia by strangulation, either by hands or by ligature. Dr. Wetli stated that the charring was superficial in the neck region and he did not see "any evidence' of charring through the muscle to the bone. In fact, Dr. Wetli made it clear that he did not see any deep charring on the victim's chest and neck down to the bone. Dr. Baden will clearly rebut that.
4.Testify concerning the substantial amount of ante-mortem hemorrhaging on the right and left sides of the victim's chest and how that is clear evidence of a struggle. Dr. Wetli stated that the hemorrhaging was post-mortem, therefore claiming that it is not evidence of any struggle.
5.Testify that the use of a broad soft cloth in ligature strangulation would not leave superficial or deep wounds on the victim's neck, which is completely contrary to the opinion of Dr. Wetli who, in fact, stated that there was no evidence of ligature strangulation or manual strangulation.
The People argue that the above-referenced testimony of a highly-qualified forensic pathologist is admissible in their rebuttal case, based upon the testimony of the defense pathologist, because (i) it clearly tends to disprove facts sought to be established by the defense and (ii) it is corroborative evidence of Dr. Ashar , which the defense sought to discredit. Prince, Richardson on Evidence, §6-504 (11 Ed., Farrell); see also People v Darrow, 260 AD2d 928, 930 [1999] and People v Hofmann, 238 AD2d 716, 720 [1997] (Appellate Division, Third Department, holding that forensic pathologists were properly called as rebuttal witnesses). This evidence is offered by the People to disprove medical facts sought to be established by the defense and to corroborate evidence established through Dr. Ashar, which the defense sought to discredit. It is clear that these facts are not within the understanding of the jury without the testimony of an expert, as was Dr. Wetli offered for that purpose by the defense.
The second Pathologist the People called in their case in chief who was called in by the Prosecution after their first Pathologist, Dr,. Chau, M.D., found no homicidal cause or manner of death.
"Rebutting evidence in such cases means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove."Marshall v Davies, 78 NY 414, 420 [1879]; accord, People v. Harris, 57 NY2d 335 [1982], cert denied 460 US 1047. "A party has the right to impeach or discredit the testimony of an opponent, and such evidence is always competent." Ankersmit v Tuch, 114 NY 51, 55 [1889]; accord, Harris, supra.
CPL 260.30[7] states, "The people may offer evidence in rebuttal of the defense evidence, and the defendant may then offer evidence in rebuttal of the people's rebuttal evidence. The court may in its discretion permit the parties to offer further rebuttal or surrebuttal evidence in this pattern". See also People v Mancuso, 267 AD2d 252 [2nd Dept 1999]; People v Santana, 80 NY2d 92 [1992]; and People v. Harris, 98 NY2d 452 [2002].
The defense argues that Dr. Baden's proposed testimony should be precluded, in that it is cumulative, improper bolstering, and improper rebuttal. Defendant argues that in the case at bar, the People are seeking to present Dr. Baden's testimony to simply bolster and corroborate the testimony of his experts and that the testimony of Dr. Baden would be redundant and it would not further enlighten the jury in any way. Defendant also argues that despite the People claim that Dr. Baden's proposed testimony is not being offered for bolstering, it clearly is, and although the People allege that Dr. Baden will disprove facts presented by the defense, in actuality, the People have already presented to the jury their pathologist witnesses who are contra to Dr. Wetli, and these witnesses explained the People's position thoroughly and that Dr. Baden has nothing new to add.
It is the defendant's position that the People should be barred from calling Dr. Baden as a rebuttal witness, because the proffered evidence does not fall into any recognized rule for allowing rebuttal evidence. Defendant argues that the People had every opportunity to offer Dr. Baden on their case-in-chief and independent of violating the rule on rebuttal evidence, the proffered evidence would now be merely cumulative. The People's offer would only prove to be cumulative and a thinly-veiled effort to get the "last word" in on key pathological/medical issues in the case. The People already called Dr. Chau, a pathologist who had direct involvement in the first autopsy and investigation into Catherine Novak's death, and Dr. Ashar, a forensic pathologist who also had involvement in the autopsy into Catherine Novak's death. Thus, the People already recognized and availed themselves of the opportunity to call two pathologists on their direct case—one of whom is an expert in the exact same field as Dr. Baden. Defendant argues that had the People wanted to call Dr. Baden on their direct case, they could have done so. The Prosecution not only had the opportunity, they had the foresight to address and explore all of the issues that they wanted relative to the forensics in this case by way of Dr. Chau's and Dr. Ashar's testimony.
Defendant argues that the jury does not need to hear from a third expert who had no direct involvement in the viewing of forensic examination of Catherine Novak and allowing such testimony would only inject another opinion into the case, distract the jury from the other issues at hand, and allow the People to bolster the testimony of other experts.
The Court will address, in seriatim, the People's five areas in which the Prosecution proposes that Dr. Baden testify.
The defense argues that as to the People's first proposal, that Dr. Baden would testify for the need of a forensic pathologist to obtain as much information as possible before formulating an opinion, because Dr. Wetli allegedly stated that he was not interested in surrounding circumstances of the investigation, the People have repeated the words of Dr. Wetli out of context. Dr. Wetli indicated that it is his role to review the body and make a determination. Dr. Wetli continued that while the history of a case is important, it does not bind him forensically, that if statements are inconsistent with his findings, those statements can be rejected.
It is not in dispute that a forensic pathologist must attain as much information as possible. Dr. Wetli did not indicate otherwise. Moreover, when Dr. Ashar testified, she indicated that she considered the surrounding circumstances, but in absence of the co-defendant's statements, she would have been unable to determine cause of death. Dr. Baden's testimony is relevant to what Dr. Wetli's opinion and would not improperly bolster Dr. Ashar's testimony even though she testified to and in the main the importance of gathering information. Thus, Dr. Baden's testimony is cumulative and improper rebuttal on this issue.
The People submit in paragraph 2 that Dr. Baden needs to testify in rebuttal as to the importance of observing the deceased at the location of the fire. Defense argues that none of the People's pathologists, Dr. Ashar nor Dr. Chau, as well as Dr. Baden testified to observing the deceased at the location and rendered their medical opinions without seeing the scene. Defense also argues that there has already been testimony by Dr. Ashar and Dr. Chau concerning this subject. To permit Dr. Baden to add his third opinion on this point when he also did not see the victim at the scene would add nothing to this trial and would improperly be cumulative.
Dr. Baden testified before the Grand Jury.
In paragraph 3 the People indicate that they want to present Dr. Baden to the jury so that he may testify about "deep" charring. Defense argues that Dr. Ashar has already testified at length as to the impact of charring, about her findings concerning charring, as well as about Dr. Chau's findings on charring and that this topic was discussed thoroughly by them with autopsy photo exhibits. However, Dr. Wetli's testimony was different and was properly before the jury and Dr. Baden's opinion on a subject to impeach the testimony of the Defendant's pathologist is permissible.
In Paragraph 4 the People are seeking Dr. Baden to testify concerning post and pre mortem hemorrhaging on the issue of the alleged struggle between Defendant and the victim. However, defense argues that Dr. Ashar has thoroughly discussed the dissection of the derma around the ribs. Dr. Ashar had one opinion and Dr. Wetli had a different opinion. The proposed testimony is available to directly rebut Dr. Wetli's opinion. It is not simply further bolstering.
As well as Dr. Chau who testified to using garden like shears to cut through the rib cage upon autopsy.
In paragraph 5 the People seek to present testimony concerning ligature strangulation. Defense argues that Dr. Ashar has discussed on both direct and cross-examination the impact of a sweatshirt hoodie strangulation as suggested by one of the witnesses is one of their versions of the testimony. Defense also argues that this type o f manner of death of possible ligature strangulation has been fully testified to by Dr. Ashar.
Another version from co-defendant Sherwood said the Defendant used his hands, manual strangulation.
Defendant argues that permitting Dr. Baden to testify as to this (these) issue would be improper bolstering. In People v Mercier, 2001 WL 914278, NY Slip Op. 40078 (u), 2001, this Court discussed the issue of rebuttal testimony as it relates to improper bolstering. This court held that "the courts routinely hold that proffered testimony that is redundant even simply in part and could have been presented in the party's direct case is properly excluded as it would serve only to bolster the party's direct case". The Court continued that "In a third Department case [Baumis v General Motors corp., 106 AD2d 789 (3rd Dept 1994)], the Appellate Division held that the trial court's refusal to permit the plaintiff to present rebuttal evidence was proper when it would have only at best...tended to corroborate the proof already adduced in the plaintiff's direct case" and that at "the close of the defendant's case the plaintiff then wanted to present further expert testimony regarding the issue of causation and this request was denied as it would not have further enlightened the jury on the issue."
This Court has consistently held in Mercier, supra, that the "People's rebuttal expert will not be allowed to reiterate...the prosecution's...theory of the case". The People's rebuttal expert testimony would be limited to material not covered by the prosecution's expert witness in their case in chief.
Furthermore, from a textbook view of the law, rebuttal evidence is permitted in only two instances: (1) evidence that tends to disprove some fact sought to be proved by adversary; and (2) evidence that rehabilitates the character of a witness who has been impeached. See Marshall v Davies, 78 NY 414 (NY 1879); see also Howe v Ampil, 185 AD2d 520 (3d Dept. 1992). The logical extension of this proposition is that the rebuttal case does not permit counsel for the plaintiff or prosecution to "hold back some evidence and then submit it to bolster the case after defendant has rested." See, Hutchinson v Shaheen, 55 AD2d 833 (4th Dept. 1976).
The ultimate decision on whether to allow rebuttal evidence rests within the discretion of the trial court. See, CPLR §4011; CPL §260.30[7]. This power includes the discretion to disallow evidence at the rebuttal stage that might properly have been offered on the case in chief. See People v Harris, 57 NY2d 335 (NY 1982) stating; "The rules concerning the proper scope of rebuttal evidence are clear. The party holding the affirmative of an issue must present all evidence concerning it before he closes his case. Thereafter, that party may introduce evidence in rebuttal only." In the case at bar, Dr. Baden was on the People's witness list, but never called to testify on direct.
Although Dr. Baden would be called as expert witness to advance an opinion on specific cause and manner of death issues, his testimony as an expert on rebuttal would be relevant in explaining certain issues to the jury that are beyond the ken of the average juror provided it is in contra to the Defendant's pathologist and not just to give his general opinion on the autopsy and the manner and cause of death.
This Court will not deny Dr. Baden the opportunity to testify in rebuttal as consistent with this decision, but he will note be permitted to give redundant medical testimony; he will only be permitted to testify to disprove medical facts and opinions posted by the Defendant's pathologist.
This shall constitute the Decision and Order of this Court.
DATED: September 23, 2013
Monticello, New York
_________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate