Court of Appeals: 'expurgatory oath' sufficient to cure potential juror's previous ambiguous statements on ability to be fair and impartial

People v Shulman, 2005 NY Slip Op 07827

The other decision of note handed down this week by the Court of Appeals is People v Shulman (2005 WL 2759199, 2005 NY Slip Op 07827 [available here]). The opinion (authored by Judge Read) is a big'un, as is to be expected in a death-penalty case. Besides being notable for one of the truly gruesome recitations of fact to be found in a published criminal decision (severed limbs figure prominently), the opinion does not break much new legal ground. In fact, beyond clarifying the first-degree "similar fashion" murder statute, the most interesting aspect of the opinion deals with Arnold-type jury selection issues.

Defendant argued on appeal that two prospective jurors should have been struck for cause because their responses during voir dire raised a doubt as to their ability to be fair and impartial. The first potential juror (a former correction's officer) wrote in his jury questionnaire that "life without parole" meant "'3 hots and a cot, free medical, $50[,]000 a year wasted." The second potential juror "answered questions probing her ability to put her opinion [regarding defendant's guilt] aside by stating that 'I think I can' or that she would 'try.'" (People v Shulman, 2005 WL 2759199 at *__ [2005].) Both jurors subsequently recited the 'expurgatory oath', i.e. each juror "assured the trial court and the parties that [they] could be impartial." (Id.) This was enough for the Judge Read and the unanimous Court:

As we have noted, words like 'think or try' are 'not . . . talismanic word[s] that automatically make[] a statement equivocal. [The juror's] other answers dispelled any doubt about her ability to deliberate impartially. [...] In light of that response as well as her many other assurances of impartiality, the trial court had ample basis for rejecting defendant's for cause challenge to [the juror].

(Id.)

Again, this opinion does not break any new ground, but it does reinforce an important concept for trial defense attorneys to keep in mind during jury voir dire--often, it is a juror's final statement on his or her ability to be impartial that controls. No matter how much a juror equivocates, an appellate court is probably not going to disturb a trial judge's denial of a 'for cause' challenge if the potential juror finishes her colloquy by agreeing that she can be fair and impartial. Prosecutors and trial judges are increasingly savvy on this score (perhaps because the Fourth Department continues to hand down reversals based on failure to elicit an unequivocal assurance that a juror can be fair and impartial (see my previous posts here and here.), and I think it is almost inevitable that this 'fertile ground' for reversal will eventually dry up.

Court of Appeals: consent to "search" car does not equal consent to "destroy car with crowbar"

People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828

In a decision handed down yesterday, the Court of Appeals holds that a police officer may not "conduct a destructive search of an automobile based on a suspect's general consent to search." (People v Gomez, 2005 WL 2759218, 2005 NY Slip Op 07828 [available here].) The police in Gomez pulled over defendant because his car had an excessive amount of window tinting. After stopping the car, the officers asked defendant if they could search the car; defendant said sure (apparently forgetting that he was in the process of transporting 1 1/2 pounds of cocaine). The Court described the search:

[The officer] immediately went to the rear seat, unlocked it and pulled it back. He observed gray 'non-factory' carpet in the location above the area where he earlier spotted fresh undercoating. He then pulled up the glued carpeting and discovered a cut in the floorboard. [The officer] used his pocket knife to twist open the sheet metal. After struggling to reach what he thought was a plastic bag, [the Officer] returned to his cruiser and retrieved a crowbar, which he used to pry open part of the gas tank. The officers ultimately recovered seven bags of cocaine weighing approximately 1 1/2 pounds from the compartment found in the gas tank.

(Id.)

After noting the Supreme Court's standard for "'measuring the scope of a suspect's consent under the Fourth Amendment'"--i.e. "what would the typical reasonable person have understood by the exchange between the officer and the suspect," (See Florida v Jimeno, 500 US 248, 251 [1991]), the Court of Appeals found that the officers' actions in Gomez exceeded defendant's consent as a matter of law:

In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a seizure that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found. A reasonable person would not have understood the officer's request to search to include prying open a hole in the floorboard and gas tank with a crowbar. Here, the officer clearly crossed the line when he took his action without first obtaining defendant's specific consent.

(Id.)

This is a welcome, common-sense outcome--it seems relatively obvious that a motorist who gives the police consent to search his vehicle does not imply consent to the police ripping apart his car with a crowbar.

However, Judge Read dissents, and takes the majority for task for setting out a "bright line" rule--according to Judge Read, "the majority is just wrong to conclude that, as a matter of Fourth Amendment principles, a search resulting in 'damage' is per se outside the scope of a general consent." (Id.) Judge Read would shift the focus, "[s]o, just as 'it was objectively reasonable for the police to conclude' in Jimeno that they had consent to search any containers in the car 'which might bear drugs', it was objectively reasonable in this case for [the officer] to believe that he had permission to search any area of defendant's car in which narcotics might be secreted." (Id.)

The dissent's logic can be taken to some absurd extremes--what if the officer thought the cocaine might be in the tires? Could he slash the tires based on a defendant's general consent to search? Can officers cut through upholstery if they believe the drugs might be secreted in the car's seat cushions? Drugs can be hidden anywhere in a car--under the dissent's logic, it would apparently be acceptable for the police, acting under a general consent to search, to disassemble the entire car and leave it up on blocks on the side of the road when the search was done. The dissent doesn't answer such hypotheticals, but it does raise the specter of 9/11, arguing that the majority's standard will "hamstring police officers who reasonably suspect that a vehicle contains a hidden compartment--an alteration with few, if any, innocent purposes--which might conceal far more lethal cargo than narcotics." (Id., citing the 9/11 Commission Report.)

For its part, the majority counters that "[W]e cannot agree with the dissent that Fourth Amendment jurisprudence must strive to avoid rules." (Id.)

Unofficial stats: September 2005 term.

Here are my unofficial stats for the September 2005 term, based on the criminal decisions posted at the Fourth Department's web site:

Total criminal decisions: 77

Reversals / Modifications: 11

I've collected the noteworthy reversals from the September term in a previous post (available here.)

The October term of Court is underway, with decisions for the October term coming down November 10, 2005.

Best of the Rest (September 2005 term)

As previously noted, the September term of the Fourth Department was not a great one for criminal decisions. Here are the best of the rest, in no particular order:

People v Rodriguez (or, note my exception, again): the Fourth refused to reach the merits of defendant's Sandoval issue because "[b]y failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion." (People v Rodriguez, 2005 WL 2404602, 2005 NY Slip Op 07179 [decision available here].) I think this "ultimate objection" requirement is unnecessary for preservation, and revives in fact if not in verbiage the old technical "exception" requirement for preservation. Alas, the Fourth Department still does not agree. See my previous post on the subject here.

People v Mayo: defendant's guilty plea to SCI vacated because "[w]here, as here, a defendant is charged with a class A felony, the defendant cannot validly waive indictment or consent to be prosecuted by a superior court information." (People v Mayo, 2005 WL 2404043, 2005 NY Slip Op 07082 [decision available here].)

People v Chambers: duration of an order of protection improper because the trial court "failed to take into account the jail time credit to which he was entitled." (People v Chambers, 801 NYS2d 171 [decision available here].) The issue was not preserved, but the Fourth Department reached it in the interests of justice.

People v Davis: a rare reduction of defendant's sentence as harsh and excessive. (See People v Davis, 2005 WL 2404142, 2005 NY Slip Op 07110 [decision available here].)

People v Cooke & People v Robinson: vacating defendants' sentences in the interest of justice: "because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution." (People v Robinson, 2005 WL 2404422, 2005 NY Slip Op 07136 [decision available here].)

The decision in People v Kilgore deserves somewhat lengthier treatment. The majority reversed defendant's drug possession conviction, finding that defendant's "motion to suppress physical evidence by the police following a warrantless entry into his apartment" should have been granted because "exigent circumstances" did not exist to justify the warrantless entry. (See People v Kilgore, 2005 WL 2403327, 2005 NY Slip Op 07019 [decision available here].) The Court set out the relevant factors to consider:

'Although not to be taken as a rigid formula, the following factors should be considered in determining whether exigent circumstances exist: (1) the gravity or violent nature of the offense; (2) whether there is a reason to believe the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong reason to believe the subject is in the premises being entered; (5) the likelihood the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.'

(Id [citing the relevant factors from People v Burr, 124 AD2d 5.].)

The majority found no exigent circumstances existed because "[a]lthough the alleged victim herein reported to the police that she had been raped, there was no indication that defendant was armed. Additionally, the alleged victim told the police that she left defendant's apartment after defendant had fallen asleep, and thus there was no suggestion that defendant would have escaped if not swiftly apprehended." (Id.)

Justice Hayes dissented, and would have applied the Burrfactors differently in finding exigent circumstances existed; from the dissent:

A violent offense had been reported, i.e., a rape, and the police had probable cause to believe that defendant had committed the offense. The police had 'strong reason to believe' that defendant was inside the apartment, based on the statement of the victim that her attacker was asleep when she left the apartment and the sounds heard by one of the officers coming from inside the apartment. Although there was no specific evidence that defendant would attempt to escape, 'there [also] is no indication that he was not seeking to escape.' The police entered the apartment peacefully through the apartment door, which was left ajar. Thus, in my view, the court properly refused to suppress the physical evidence seized from defendant's apartment.

(Id. at ___ [HAYES, J., dissenting].)

It is hard to fault either the majority or dissent--each picked those Burr factors that supported their respective outcomes and downplayed the others. My hunch is that the fact that this was a drug possession conviction--and not a conviction for the reported rape--made the difference for the majority.

Court of Appeals to review whether deprivation of right to counsel at suppression subject to harmless error analysis

The Court of Appeals has granted leave to review the Fourth Department's decision in People v Wardlaw (18 AD3d 106), where the Fourth Department held that deprivation of a defendant's right to counsel at a suppression hearing was subject to harmless error analysis. At the time the decision was handed down, I noted that it seemed the Fourth Department was getting a little ahead of itself, because the Court of Appeals had previously ruled that deprivation of the right to counsel was fundamental error not subject to harmless error analysis regardless of when the deprivation occurs. See my previous posts on Wardlaw here and here. I am glad to see the Court of Appeals has decided to take a look at the issue.

The Court of Appeals will also review the Fourth Department's decision in People v Pacer (796 NYS2d 787), where the Fourth found that an affidavit of mailing was "testimonial" under Crawford v Washington and thus not admissible unless the declarant is subject to cross-examination. See my previous post on Pacer here.

Jeffrey Fisher outline for Crawford.

Jeffrey Fisher (the attorney who briefed and argued Crawford v Washington [previous Crawford-related posts here, here, here, and here,]) has a periodically-updated outline of post-Crawford developments. You can get the outline here. Very useful. I've added a permanent link to the outline over to the left. (Hat tip: Confrontation Blog.)

This term's Arnold reversal

People v Mateo, 2005 NY Slip Op 07170

What would a term of the Fourth Department be without an Arnold-based reversal for error during jury selection? This packet the honor goes to People v Mateo (2005 WL 2404586, 2005 NY Slip Op 07170 [decision available here]) where "County Court erred in denying [defendant's] challenge for cause to a prospective juror who gave equivocal answers during voir dire and thus failed to establish her ability to be impartial." (Mateo, 2005 WL 2404586, *1.) The facts, from the decision:

When asked whether the fact that her husband was a correction officer and her son a police officer would impair her ability to be fair, she replied that she 'would hope not,' and she acknowledged that there was a possibility that she would tend to credit the testimony of correction officers over that of other witnesses. In addition, she stated that it would be 'difficult' for her to be fair and the only 'thing [she] could say [she'd] try to be fair.' Moreover, the prospective juror was twice asked whether she would feel comfortable being judged by someone with her mindset before she gave an affirmative response to that question.

(Id. [brackets in original].)

Given those facts, the Fourth reversed: "[t]he statements of the prospective juror 'raise[d] a serious doubt regarding [her] ability to be impartial,' which mandated that she be excused unless she 'state[d] unequivocally on the record that . . . she [could] be fair and impartial', and she did not do so." (Id. [brackets in original] [citations omitted].)

The Court of Appeals decision in Arnold (followed by the Fourth Department in Mateo) is a criminal appellate lawyer's best friend. The rule of Arnold is simple: "Prospective jurors who make statements that cause serious doubt on their ability to render an impartial verdict, and who have given less-than-equivocal assurances of impartiality, must be excused." (People v Arnold, 96 NY2d 358, 363 [2001] [decision available here].) If a juror falls short of giving unequivocal assurances--saying "I think so" or "I hope so" when asked if he or she can be impartial, for example--the challenge for cause must be granted, or reversal is required, without resort to any kind of harmless error analysis. Most trial judges are aware of Arnold by now, so the era of numerous Arnold reversals may well come to an end in the near future. But for now, jury selection/Arnold issues remain the only reliably successful issues for New York criminal defendants.

Of course, an Arnold issue must be preserved by defense counsel exhausting all peremptory challenges. (See e.g., People v Jones, 11 AD3d 902, 903 [4th Dept 2004].)

Another "depraved" decision

People v Baker, 2005 NY Slip Op 07226

In another decision dealing with the border between "intentional" and "depraved indifference" murder in the wake of Gonzalez and Payne, the Fourth Department affirmed defendant's "depraved indifference" murder conviction in People v Baker, finding that there was a reasonable view of the evidence to conclude that defendant recklessly caused the victim's death by shooting him in the chest. (See People v Baker, 2005 WL 2404847, 2005 NY Slip Op 07226 [decision available here].)

The facts, as summarized in the Court's opinion:

The record establishes that defendant approached the two victims and shot the first victim in the chest, which eventually caused the death of that victim, and defendant then shot the second victim. The first victim ran after being shot, but defendant did not follow him. Instead, defendant approached the second victim, stood over him, and continued to shoot him from inches away, pulling the trigger of his weapon while aiming it at the second victim even after there was no remaining ammunition.

(Id.)

Given those facts, the Court held that "a rational jury could have had a reasonable doubt with respect to whether defendant's acts were 'specifically designed to cause the death of the [first] victim.'" (Id.) I'll buy that--it seems from the facts that the second victim was the real target of defendant's aggression, and the first victim was shot so defendant could get to the second victim. But acknowledging that defendant may not have intended to kill the first victim does not necessarily establish that defendant acted "recklessly" in shooting the first victim--indeed, from the facts of the decision it seems as if defendant intentionally shot the first victim in order to get to the second victim. In that case, manslaughter in the first degree would seem to be a proper conviction--defendant intended to cause the first victim serious physical injury by shooting him in the chest, and the victim ultimately died--but is the reckless mens rea required for "depraved indifference" murder established?

The Fourth Department obviously thought so in Baker, although in another decision from this packet dealing with the same issue, the Court found legally insufficient facts to support a defendant's "depraved indifference" murder conviction where defendant stabbed his victim once in the chest. (See People v Lawhorn, 2005 WL 2403844, 2005 NY Slip Op 07058 [available here].) See my previous posts on Lawhorn here and here. Perhaps the fact that there was more than one victim in Baker and only one victim in Lawhorn was a factor in the Fourth Department's distinction between the two cases. (See Lawhorn [stressing that a "'one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder'" [citations omitted].) But certainly some tension exists between the Lawhorn and Baker decisions (i.e. one shot in the chest can support finding of "reckless" killing [Baker] but one stab wound in chest cannot support "reckless" killing [Lawhorn]). Perhaps that is why Justice Pine wrote a separate concurring opinion in Baker that would have affirmed the depraved indifference conviction on the much more narrow preservation ground. (See Baker, 2005 NY Slip Op 07226.) The implication of Justice Pine's concurrence is that she would not have found the evidence legally sufficient to support the depraved indifference count (presumably reasoning that, if a single stab wound to the chest was sufficient to rule out a depraved indifference murder conviction under Lawhorn, a single gunshot to the chest should likewise render Baker's depraved indifference murder conviction infirm), but would not have reached the issue because it was not preserved for review.

For what it's worth, I think the facts of Baker could support both a conviction for manslaughter in the first degree and depraved indifference murder--defendant could have intended to cause serious physical injury to the victim (thus satisfying the mens rea requirement for manslaughter 1st) and simultaneously been aware of and ignored that by shooting the victim he was creating a substantial and unjustified risk of death (thus satisfying the mens rea requirement for depraved indifference murder). In fact, I had an argument with my co-workers on this point for the better part of two hours this morning. I will post at length soon why I think I am right. But for now, the arguably inconsistent results from the Fourth Department in Lawhorn and Baker illustrate how the Appellate Divisions are struggling to set the boundaries between "depraved indifference" and "intentional" murder after Gonzalez and Payne.

Intentionally reckless reduction?

Another interesting wrinkle from the Lawhorn decision (see original post here): the Fourth Department overturned defendant's conviction for "depraved indifference" murder in the second degree because the evidence that defendant stabbed the victim in the chest was not consistent with a less-than-intentional mental state; the facts supported intentional murder or nothing. Fine so far. But the Court in Lawhorn not only reversed the "depraved indifference" conviction--it reduced the conviction to "reckless" manslaughter in the second degree. This begs the question--why is the evidence that "Defendant . . . intentionally stabbed the victim once in the chest" not sufficient to support the less-than-intentional mental state for depraved indifference murder, but is sufficient to establish the "reckless" mental state for manslaughter in the second degree? (See Penal Law 125.15[1] ["A person is guilty of manslaughter in the second degree when . . . [h]e recklessly causes the death of another person."].) Aren't both crimes ("depraved" murder 2nd and "reckless" manslaughter 2nd) based on "reckless", non-intentional conduct? And if so, how can the evidence that defendant intentionally stabbed his victim in the chest support one conviction ("reckless" manslaughter 2nd) and not the other ("depraved" murder 2nd)? "Ordinarily, a defendant cannot be guilty of both the intentional and reckless homicide of the same individual because a defendant cannot intend to cause a person's death and at the same time consciously disregard a risk that he or she will succeed in doing so." (People v Atkinson, 799 NYS2d 125 [2d Dept 2005] [decision available here].)

It would seem to make more sense in the Lawhorn case to reduce the "depraved" murder 2nd conviction to manslaughter in the first degree, because manslaughter in the first degree is based on intentional conduct that causes death. (See Penal Law 125.20[1] ["A person is guilty of manslaughter in the first degree when . . . with intent to cause serious physical injury to another person, he causes the death of such person or of a third person."].) But by the Lawhorn Court's own reasoning, the same deficiencies that rendered the trial proof insufficient to support the jury's "depraved" murder 2nd conviction should also doom the manslaughter 2nd conviction. That it doesn't is puzzling.

This is an issue ripe for the Court of Appeals, and leave is pending from the Second Department's decision in Atkinson.

Decision Day: September 2005 Term

The Fourth Department handed down its decisions for the September, 2005 term this past Friday. I was out of town, and hence a couple of days late in posting. Not a great term for criminal decisions, with only one real reversal of any substance--People v Lawhorn (decision available here), where the Fourth Department reversed defendant's depraved indifference murder conviction. Following the recent Court of Appeals decisions in People v Gonzalez (1 NY3d 464 [decision available here]) and People v Payne (3 NY3d 266 [decision available here]), the Court in Lawhorn held that, where defendant had stabbed the victim once in the chest, the "case falls within the 'overwhelming majority' of cases in which depraved indifference murder should not have been charged. 'Absent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.'" (Lawhorn, 2005 WL 2403844, 2005 NY Slip Op 07058 [citations omitted].) The Lawhorn case continues the process of clarifying the border between "depraved indifference" and "intentional" murder, and is important because the facts did not involve gratuitous overkill from which an intent to kill is obvious. (See e.g. Gonzalez, 1 NY3d at 465 (standing over prone victim and firing 8 shots into head and back); Payne, 3 NY3d at 269 [shotgun blast at point-blank range to chest].) A useful decision to have at the ready if arguing the legal insufficiency of a depraved indifference murder conviction involving less spectacular overkills than the facts of Gonzalez and Payne.

Of course, it helps if trial counsel makes a detailed trial order of dismissal and renews it at the end of the defense case. The Fourth Department gives no quarter on this preservation requirement, and three decisions from this term found legal sufficiency issues unpreserved based on defense counsel's failure to renew the motion at the close of all evidence. (See People v Diefenbacher, 2005 WL 2403850, 2005 NY Slip Op 07061 [decision available here]; People v Carter, 2005 WL 2403855, 2005 NY Slip Op 07063 [decision available here]; People v Cox, 2005 WL 2404430, 2005 NY Slip Op 07141 [decision available here].)

I'll post on the other interesting decisions from the September term over the next few days.

Summer Hiatus

Please excuse the summer lull in posts--both the Court of Appeals and Fourth Department take the summer months substantially off, so there have been no new decisions to report. I hope to comment on a few interesting issues I've come across over the summer, but otherwise regular posting will resume when criminal decisions start coming down in September.

New Blawgs added.

I've added five new blawgs over to the left: A Public Defender, Arbitrary & Capricious, Crimlaw, CrimProf Blog, and Fourth Amendment. The Fourth Department's next term is not until September, but I will try to post fresh content periodically during the remaining summer months.

Unofficial stats: June 2005 Term

June 2005 Term: Unofficial Stats

Here are my unofficial stats for the Fourth Department's June 2005 term, based on the cases posted on the Court's website:

Total criminal cases decided: 44
Reversals or modifications: 6

Of those six reversals, one was a People's appeal. (See People v Forsythe[County Court erred in finding insufficient evidence before grand jury to support indictment].) Here are the other reversals of note:

People v Santiago: Fourth Department reduced Defendant's SORA risk classification reduced in the interest of justice from "3" to "2", where defendant's lone sex crime conviction was a Rape 3rd, and the "record establishes . . . that the victim willingly engaged in sexual activity with defendant at a time when she was only a few months from the age of 17."

People v Vogel: finding, as a matter of discretion and in the interest of justice, that defendant's sentence would be vacated and the matter remanded for resentencing where the People agreed not to make a sentencing recommendation and "they failed to honor that agreement at the time of sentencing." Judge Scudder dissented, arguing that 1) defendant's waiver of the right to appeal encompassed the issue raised by defendant, 2) the issue was not preserved, and he would not reach it in the interest of justice, and 3) the prosecutor's promise not to make a sentence recommendation was made in a letter conveying the plea offer, and was not subsequently put on the record, and thus was not part of the plea agreement.

People v Goodwill: defendant allowed to withdraw his guilty plea where the lower court did not advise the defendant "of the mandatory period of postrelease supervision, which is 'a direct consequence of his conviction.'"

The only other decision from the June packet deserving mention is People v Young. Defendant's robbery and burglary convictions had previously been reversed on the ground that defendant had been selected as the result of an unduly suggestive lineup procedure, and the matter was remanded for a hearing to determine if the eyewitness had an independent basis for her identification of defendant. On remand, the lower court determined that such an independent basis existed, and a majority of the Fourth Department agreed, finding "that, although defendant's face was partially covered, she had a clear view of defendant's eyes in well-lit conditions for approximately 5 to 7 minutes and that she studied his face in an effort to determine whether he was someone she knew." (Young at 1.)

Judges Hurlbutt and Gorski dissented, arguing that the People failed their burden to prove an independent basis by, 1) the suspects face was mostly covered during the incident, 2) the witness could not even help the police construct a composite sketch of the suspect immediately after the incident, 3) the witness could not pick defendant out of a photo array conducted a month after the incident. (Young at 1-2.) Based on these facts, the dissenters would have found that "the inability of the victim to assist the police in constructing a composite of the intruder and her inability to select defendant from a photo array prior to the lineup identification procedure strongly suggest that her alleged independent 'recollection' of defendant was irrevocably tainted by her having viewed defendant in the lineup and having heard him speak. We therefore must conclude that any in-court identification testimony by the victim 'would be derived from exploitation of the illegal arrest'". (Id.

The majority's opinion in Young reaffirms how weak eyewitness identification issues have become for criminal defendants. Even if an identification procedure is conducted that is clearly suggestive and thereby taints an eyewitness' in-court identification of a defendant, almost anything qualifies as an "independent basis" for the identification sufficient to render the unduly suggestive procedure supposedly 'harmless.'

Decision day: June 2005 term

In my haste to get a jump on the 4th of July holiday weekend, I forgot that the Fourth Department was handing down decisions for the June term last Friday. The Fourth does not hear oral argument for the June term, so all cases must be submitted and usually there aren't too many cases of significance in the packet. Nonetheless, I'll review the criminal cases in the next day or so and highlight anything interesting.

For Miranda taint, "single continuous chain of events" gets a whole lot shorter: Court of Appeals guts Chapple/Bethea

People v Paulman, 2005 NY Slip Op 05452

The United States Supreme Court has held that in most cases Miranda warnings alone are sufficient to dispel the taint of a prior unwarned statement. (People v Paulman, 2005 NY Slip Op 05452.) New York does not follow the Supremes on this issue. Interpreting the New York constitution, the Court of Appeals has long held that the right to remain silent "would have little deterrent effect if the police know that they can as part of a continuous chain of events question a suspect in custody without warning, provided only they thereafter question him or her again after warnings have been given." (People v Bethea, 67 NY2d 364, 366 [1986].) In New York, Miranda warnings must "precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." (People v Chapple, 38 NY2d 112, 115 [1975].)

Although the Court of Appeals stopped short of overturning Bethea and adopting the Supreme Court's position on this issue, this past Wednesday's opinion in People v Paulman weakens the Chapple/Bethea doctrine substantially. Defendant in Paulman was taken to the police station and was asked to write out a statement, without first being Mirandized. He finished giving the first written statement at about 3:30 a.m. At 4:00 a.m., defendant was taken to an office in the same barracks and given his Miranda warnings, and then gave another written statement. The Court of Appeals affirmed the Appellate Division's holding that the first, un-Mirandized statement should have been suppressed, but found that "there was a sufficiently 'definite, pronounced break in the interrogation' to dissipate the taint from the Miranda violation . . . [and] the Mirandized statement is admissible at trial despite the prior, unwarned statement." (Paulman at 20.) The Court noted the general factors usually considered to determine if there is a sufficient break in interrogation:

to determine whether there is a "single continuous chain of events" under Chapple, New York courts have considered a number of factors, including the time differential between the Miranda violation and subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police. No one fact is determinative and each case must be viewed on its unique facts.

(Paulman at 20.)

Paulman is such a significant decision not because it sets out new Chapple factors, but rather in the way the Court applies the factors. The Paulman Court found 30 minutes a sufficient lapse to dispel the taint of the first un-warned statement; the Fourth Department has previously found an interval of almost twice as long insufficient to attenuate subsequent statements. (People v Jordan, 190 AD2d 990, 991 [4th Dept 1993].) Another factor cited by the Paulman Court was that the two interviews "took place in different locations"--this is technically true, but the "different location" was an office in the same police station where the initial un-warned statement was given. Again, the Fourth Department has previously found a subsequent statement not sufficiently attenuated from the first where the original un-Mirandized statement was given at the crime scene and the subsequent statement was taken at the police station (see Jordan, supra), and I am aware of no case where a "different location" for purposes of a Chapple analysis was down the hall from the location where the original, un-warned statement was given.

The Court of Appeals also seemed to give great weight to the fact that the two "methods of eliciting information" were different between the un-warned statement and the subsequent interview, holding "a reasonable suspect in defendant's position would have perceived a marked change in the tenor of his engagement with police." (Paulman at 21.) This has never before been the standard to determine if a sufficient break has occurred to find subsequent Miranda warnings have dispelled the taint of the original un-warned statement. Chapple requires "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." (Chapple, 38 NY2d 112, 115 [1975].) It is hard to see how a marked increase in the intensity of questioning can count as a "pronounced break" in the interrogation.

Indeed, Paulman seems to stretch Chapple/Bethea almost to the breaking point. It is hard to escape the conclusion that the Court of Appeals is retreating from the state constitutional protections against self-incrimination found in Chapple/Bethea, interpreting their previous precedents in such a way as to read out any meaningful safeguards.

Court of Appeals: failure to allow defendant to present "bad reputation" evidence about key witness reversible error

The Court of Appeals handed down three criminal decisions of note today. I'll comment on People v Kelly (a murder-by-bayonet case) and People v Paulman (finding statement given after Miranda warning attenuated from improper pre-Miranda statement) over the next couple of days. For tonight, I'll deal with People v Hanley. The Court in Hanley reaffirmed that,

"[A] party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity."

The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury.

(Hanley at 4 [citations omitted].)

This rule allowing general "reputation" evidence for purposes of impeaching credibility stands against the equally "well setlted" rule "that a party cannot call a witness to contradict an opposing witness' answers on cross-examination solely for the purpose of impeaching that person's credibility." (Hanley at 3.) These two rules bothered me during my evidence class at law school, and the passage of time has done nothing to make the rules more intuitive. It seems testimony about a person's general bad reputation for credibility, stated in broad, nonspecific terms, is the least helpful measure of a person's credibility. And yet that is the type of evidence a trial court not only may allow in its discretion, but must allow or else commit reversible error. ( See Hanley at 6 ["Supreme Court incorrectly analyzed the admission of the proposed testimony as purely discretionary. As we made clear in Pavao, a party may introduce reputation testimony as a matter of right if a proper foundation has been established."].) And yet specific factual testimony that contradicts another person's testimony is not allowed to show that the person is lying and thus lacks credibility. This is one of those wrinkles of evidence law that was made to be accepted and not understood.

Sixth Circuit: 911 call testimonial under Crawford v Washington

In US v Arnold, the Sixth Circuit held that a 911 call from a crime victim was testimonial because the caller "could reasonably expect that her statements would be used to prosecute" the defendant. (US v Arnold, 2005 Fed App 0269P.) I won't dissect the opinion further, because the Confrontation Blog has already done an excellent job explaining Arnold here. And although I usually constrain this blog to issues of New York criminal law, I think this decision is a very important one for any criminal defense lawyer--practicing in New York or otherwise--to have in his or her pocket post-Crawford, particularly since most of the reported decisions on 911 calls have gone the other way (i.e. courts have found 911 calls nontestimonial and therefore subject to the classic hearsay exceptions). It is nice to have a thoughtful, well-written decision from a Circuit Court of Appeals holding that 911 calls are testimonial to point a trial court towards (even if the case originated in Tennesee--we'll take what we can get).

Second Circuit: Crawford v Washington not applicable to sentencing hearing

The Second Circuit handed down a decision this past Friday holding that "the Sixth Amendment rights of confrontation as elaborated in Crawford v Washington, and of jury factfinding discussed in United States v Booker, do not bar judicial consideration of hearsay testimony at sentencing proceedings." (US v Martinez, -- F3d --, 2005 WL 1492079 [citations omitted].) The defendant in Martinez was convicted of a federal crime, and the Court dealt with the application and factfinding under the Federal guidelines.

There is a good argument to be made that the analysis of the application of Crawford to New York's state persistent felony framework would be different. New York's persistent felony law provides for a hearing to determine the fact of a defendant's prior convictions, and at that hearing the "finding that the defendant has been subjected to a predicate violent felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible to a trial of the issue of guilt." (NY CPL 400.15[7].) The new rule of Crawford v Washington now controls the admissibility of testimonial hearsay at trial; and CPL 400.15 expressly incorporates the rules of evidence at trial to a persistent felony sentencing hearing. Therefore, Crawford should apply to sentencing hearings under New York's persistent felony offender law, despite the Second Circuit's recent decision. If Crawford does apply to persistent felony sentencing hearings in New York, the impact would be profound--currently, prosecutors put their proof in at these sentencing hearings with affidavits, certificates of conviction, and various other hearsay. Requiring prosecutors to start putting on live witnesses to prove up a defendant's prior convictions at persistent felony sentencing hearings will fundamentally change the way these hearings are done in New York.

Unofficial Stats: May 2005 Term

Here are my unofficial stats for the Fourth Department's May 2005 term, based on the cases posted on the Court's website:

Total criminal cases decided: 87
Reversals or modifications: 11

Of those reversals/mods, 2 were People's appeals (including the Washington case, which I've discussed here). I've already posted about the two most interesting reversals from the packet here (affidavit of mailing testimonial under Crawford v Washington) and here (doctor-patient privilege must yield to defendant's 6th Amendment confrontation rights). Here's the best of the rest:

People v Lee: reversing pro se defendant's conviction where the "record establishes that the court failed to inquire into defendant's 'age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver' of the right to counsel." (Lee, 2005 NY Slip Op 04893 [citations omitted].)

People v Schafer: vacating defendant's sentence where trial court's comments revealed "'the failure of the court to apprehend the extent of its [sentencing] discretion.'" (Schafer NY Slip Op 04874.)

People v Kohl: holding Superior Court Information jurisdictionally defective where crime charged in SCI (Criminal Possession of Stolen Property in the Fourth Degree) was not a lesser included offense of the indicted crime (Burglary in the Second Degree), and thus not includable in the SCI under CPL 195.20. (Kohl NY Slip Op 04904.)

Jury selection issues continue to be fertile ground for reversal.

In two cases this term, the Fourth Department reversed lower courts that failed to strike potential jurors for cause when those jurors could not give unequivocal assurances of their ability to be fair and impartial. In People v Davis, (2005 NY Slip Op 04719), a corrections officer told the court, in front of the panel of prospective jurors, that he knew defendant. The lower court instructed the panel that the fact of incarceration did not mean the defendant had previously been convicted of a crime; nevertheless, one prospective juror "responded that she could not promise the court that her 'thought processes' would not be affected by the fact that the correction officer knew defendant." (Davis at 2.) The trial court would not excuse the juror for cause, and the Fourth Department found this to be reversible error. (Id.) In People v Papineau, a prospective juror "expressed doubt concerning his ability to be impartial based upon what he had heard from bar patrons who were present on the night of the incident." (Papineau, 2005 NY Slip Op 04894.) The lower court should have elicited an unequivocal assurance from the juror that he could be fair and impartial--the lower court failed to even seek such an assurance, and the Fourth Deparment reversed. (Id.)

Standing alone, these cases are not much worthy of note--neither breaks new ground, and each simply follows the Court of Appeals precedent set in People v Arnold, (96 NY2d 358 [2001].) However, I highlight Davis and Papineau because they represent one of the few consistently winning criminal appellate issues in the Fourth Department.

An aside about Davis--the Fourth Department, assuming in its decision for the sake of argument that "defendant failed to preserve his contention for our review by a timely objection to that prospective juror", reached the Arnold issue in the interest of justice. Maybe I'm just fixated on preservation issues, but it seems to me that a defendant who challenges a juror for cause registers a "timely objection" to that prospective juror. The fact that the Fourth Department felt the need to even discuss whether the Arnold issue was preserved in Davis--when defendant admittedly challenged that juror for cause--is yet another example of the Fourth Department's rigid tightening of preservation doctrine (a phenomenon I've discussed before here and here).