The People v. Oliver Berry, Also Known as Chris Tucker

Summary

The New York Court of Appeals affirmed the Appellate Division judgment upholding Oliver Berry's convictions for murder, attempted murder, and criminal possession of a weapon. The court held that the prosecution did not improperly call a witness to elicit a Fifth Amendment privilege invocation, properly impeached the witness with a prior inconsistent statement under CPL 60.35, and did not abuse its discretion by limiting expert testimony concerning stress and eyewitness identification.

Holdings

1. It is reversible error to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting the witness's claim of privilege, or to exploit the invocation by building the prosecution's case on inferences from it or by adding critical, untestable weight to the prosecution's case. The prosecution did not do so here.
2. A party may impeach its own witness with a prior contradictory statement when the witness gives testimony on a material issue that tends to disprove the party's position or affirmatively damages its case. The redacted statement was properly admitted for impeachment only.
3. The trial court did not abuse its discretion by excluding the defense expert's testimony concerning the effect of event stress on identification reliability where the defense failed to establish the topic's general acceptance under Frye and the testimony was not relevant under the circumstances of the case.

Questions Presented

1. Whether the prosecution improperly called Kevin Kirven to elicit his Fifth Amendment privilege before the jury and thereby added impermissible critical weight to its case.
2. Whether New York Criminal Procedure Law § 60.35 permitted the People to impeach their own witness with a prior inconsistent statement when the witness's trial testimony affirmatively damaged the prosecution's case.
3. Whether the trial court abused its discretion by excluding defense expert testimony concerning the effect of event stress on eyewitness-identification reliability.

Disposition

affirmed