People v. Walstatter

OPINION OF THE COURT

Per Curiam.

Appealing his conviction for rape in the first degree, the defendant argues that judicial error deprived him of a fair trial. The rape is alleged to have been committed when the complaining witness visited defendant’s business office to be interviewed for a secretarial position. At the trial, she testified that she was forced into sexual intercourse on defendant’s couch after a struggle in which he struck her in the face. Since the defendant admitted the intercourse but insisted it was consensual, consent and forcible compulsion were the primary issues at the trial.

On this record, there is no basis for an overturn of the jury’s verdict. We do not agree with our dissenting colleague’s conclusion that the trial court was obligated to comply with defendant’s request number 11 that the jury be charged that if the facts adduced permitted of two inferences, one that "the defendant did as he is charged and the other that he did not, then you must draw the one favorable to the defendant, for in a criminal prosecution, he is entitled to every reasonable doubt.” This request, described by defendant’s counsel as a "circumstantial evidence charge”, was not warranted because direct evidence had been submitted to prove each of the three elements of rape in the first degree. It is only when the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused that a circumstantial evidence charge is necessary (see People v Tullo, 41 AD2d 957, affd 34 NY2d 712; People v Bonifacio, 190 NY 150; Richardson, Evidence [Prince, 10th ed], § 148). Here, the trial court discussed the three elements which comprise the crime of rape in the first degree and told the jury that it was the prosecution’s burden to prove each of those elements beyond a reasonable doubt. Although the defendant did not request the court to define circumstantial evidence, and request number 11 makes no reference to the moral certainty standard, it can only be viewed as an effort to focus the jury’s attention on certain circumstantial facts which could be construed as supportive of the claim that the complainant consented to the intercourse and there was no forcible compulsion. Since the circumstances referred to were relied upon by the defendant to cast doubt upon the complainant’s testimony, the charge that each element of the. crime had to be established beyond a reasonable doubt provided the defendant with better protection than the language of request number 11. No error was committed when the request was denied.

We also depart from our dissenting colleague concerning the court’s charge on forcible compulsion. The court’s charge incorporated the language of subdivision 8 of section 130.00 of the Penal Law as follows:

"According to law forcible compulsion means physical force which is capable of overcoming earnest resistance or a threat expressed or implied that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will be immediately kidnapped.

"Earnest resistance means resistance of a type reasonably to be expected from a person who genuinely refuses to participate in sexual intercourse, deviate sexual intercourse, or sexual conduct under all of the attendant circumstances. Earnest resistance does not mean utmost resistance.

"Therefore, if you find that the defendant engaged in sexual intercourse with [the complainant] by forcible compulsion then such sexual intercourse was without [the complainant’s] consent.”

On the authority of People v Yanik (43 NY2d 97), this charge was adequate. In Yanik, the complainant visited the defendant’s apartment twice and allegedly was raped on the second visit after the defendant had made sexual advances to her on the first. The trial court charged the language of subdivision 8 of section 130.00 of the Penal Law (which at that time contained no definition of earnest resistance) and added to it only the brief comment that the amount of force necessary to place someone in fear or to overcome resistance varies from person to person. Writing for the Court of Appeals, Judge Jones declared (pp 100-101): "While it may be asserted that the instructions given by the trial court were minimal, convictions are not to be set aside because, on reflection in tranquility, better charges could have been composed. Unlike most other human activities rape is an encounter the nature and dynamics of which can be perceived by the average person, including a juror; the reality of the situation is apprehended without minutely detailed analysis. It follows then that a failure to give unnecessarily expanded, meticulous instructions with respect to the meaning and application of the concept of 'forcible compulsion’ in rape cases may be less significant than might otherwise be true. Of course, the individual circumstances of each case will always determine the scope of the particular instructions. We cannot conclude that defendant was prejudiced in this case in consequence of the trial court’s failure to give an elaborated charge.”

In the instant trial, the court charged the current language of subdivision 8 of section 130.00, which includes a newly inserted definition of "earnest resistance” (see L 1977, ch 692). If an "elaborated charge” was not necessary in Yanik, the current charge certainly passes muster.

Finally, there is the matter of the trial court’s statement to the jury that: "In the event that you find a guilty verdict then it lies within my power to be sympathetic, merciful in imposing sentence.”

While such a statement is best left unmade, it was immediately followed with the following words: "I repeat, sympathy has no place in the jury room or the jury box. Either the defendant has committed a crime or he has not. There is no halfway business about it. The defendant is either entitled to leave this courtroom a free man or he should be convicted.”

In People v Morris (39 AD2d 750), cited in the dissent, the trial court informed the jury that the defendant might be given probation or be discharged if convicted. On that basis, the Appellate Division reversed the conviction, concluding that the jury might have given the evidence less scrutiny in the belief that the defendant might be conditionally discharged. There is no such implication in the statement under current challenge and the strong direction to either convict the defendant or free him cured whatever erroneous impression might have been conveyed by the earlier reference to sympathy. In any event, upon defendant’s request, the court made the following supplemental charge concerning sympathy: "Mr. Foreman, ladies and gentlemen, before I discharge you for your deliberations, so that there’s no question about it, I have indicated to you in my instructions that sympathy is to play no part in your deliberations in reaching a verdict in this case. When I say sympathy is to play no part in your deliberations I mean sympathy for anyone involved in this case, whether they be the alleged victim, the defendant, any members of anybody’s family, anyone who has testified here. I again repeat to you, sympathy is to play no part in your deliberations.”

No further exception was made to the charge.

Since defendant’s other contentions also lack merit, there should be an affirmance.