People v. Medina , 146 A.D.2d 344 ( 1989 )

OPINION OF THE COURT

Asch, J.

Defendant stands convicted of the cold-blooded execution of two men. After surprising his two victims, defendant shot one in the head, killing him instantly. He then stabbed the other repeatedly in the neck and upper back, leaving him to bleed to death. Defendant’s guilt was proven beyond a reasonable doubt and this guilt is not even contested on appeal. Defendant, in seeking reversal, relies, instead, on two main legal arguments concerning his confession to the commission of these homicides.

First, defendant argues that the confession was obtained in violation of his right to counsel, in that the police did not make sufficient efforts to discover whether he was represented by counsel on a pending unrelated case.

At the suppression hearing, Detective Cutter testified that, based upon his experience, he believed that the prior charges had been dismissed inasmuch as the defendant told him he had been "let go” in the prior action when the complaining witness had not appeared in court on four occasions. Indeed, the detective reported in a nearly contemporaneous statement to an Assistant District Attorney that defendant had a prior case which had been "dismissed”. It seems unlikely that he would try to deceive a District Attorney. The suppression court, accordingly, accepted Detective Cutter’s testimony that he had no actual knowledge of the pendency of prior charges or actual knowledge of defendant’s representation by counsel. It also found that there was no other evidence of bad faith on the part of Detective Cutter (see, 138 Misc 2d 653). This finding was not unreasonable.

In support of its position, the dissent cites the following trial colloquy:

"the court: Did you ever have a case when you learned or had opportunity to find a case dismissed after a complainant didn’t show up?

"the witness: Not after 4 times, no.”

Although the dissent finds that this answer "undermines the bona tides” of the detective’s prior testimony, the substance and context of the hearing testimony clearly show that he simply gave a confusing answer to a confusing question. The suspicions as to Detective Cutter’s "bona tides” seem to be no more than cynical conjecture and surmise.

People v Bertolo (65 NY2d 111) supports the conclusion reached by the hearing court. In Bertolo, the police knew the defendant, arrested for first degree sodomy, had been arrested some six months before on sexually related misdemeanor charges, but made no further inquiry, believing those charges had been already disposed of. The court made two statements highly relevant to the facts before us: "Absent some actual knowledge, however, of either defendant’s representation by counsel or the pendency of prior charges, the police have no affirmative duty to cease their questioning or inquire whether defendant has an attorney” (People v Bertolo, supra, at 119); and at page 120: "Finally, where the police do not actually know that earlier charges are pending, there is no warrant for imputing constructive knowledge that the suspect already has legal counsel absent some measure of bad faith on their part.”

The dissent raises the failure of Detective Cutter to inquire as to the nature of the prior charge; whether defendant was required to return to court; whether he had been paroled or released on bail, in questing his good faith in assuming that the prior charges were no longer pending. Yet, in Bertolo (supra), where defendant was charged with sodomy, the police knew defendant had been arrested six months previously for two sexually related misdemeanors. There, despite the fact there was ample time to do so, the detective assigned did not attempt to locate the case jackets or investigate the cases further. The Court of Appeals, in Bertolo, did not construe the failure of the police to inquire further as proof of bad faith. Nothing in Bertolo obligates a police officer, who in good faith believes that charges had been dismissed and, accordingly, does not have "actual knowledge” of pending charges, to make further inquiries to exclude any possibility his interpretation may be incorrect.

We find that the record amply supports the hearing court’s judgment that the officer in this case had no "actual knowledge of the pending charges and was acting in good faith”.

In People v Colwell (65 NY2d 883, 885), the Court of Appeals declined to extend what it described as "the right to counsel rule articulated in Rogers” (People v Rogers, 48 NY2d 167) to a situation in which the defendant was represented on an appeal from the prior charge.

Clearly, no appropriate purpose is served in suppressing a confession as to a new charge in the appeal before us, where the investigating detective says that he believed the prior charges were dismissed and acted on that basis and, therefore, could not realistically have had any motive to ask questions about the prior arrest. Bertolo (supra), which found that the officer had no "actual knowledge of the pending charges” and that his conclusion was reached in good faith, applies here, and the record supports that finding of Criminal Term. But even if it is assumed that the officer here, contrary to his statement, suspected the possibility that there were pending charges, but chose not to pursue that possibility and acted on the basis that there were no pending charges, what reasonable basis would there be to suppress a statement which was in fact exclusively addressed to the new and wholly unrelated charge?

This analysis of the application and purpose of the rule relating to the right to counsel, derived from defendant’s representation on prior charges, is strengthened by the most recent decisions of the New York Court of Appeals. In these cases the court held that the right to counsel expired with the disposition of the charges, making admissible defendant’s inculpatory statements made in the absence of counsel (see, People v Robles, and People v Murray, 72 NY2d 689).

The full rationale of the court’s reasoning is set forth in these paragraphs.

"It is clear from these decisions and from the background in which it was decided that Rogers established a derivative and accordingly limited right with respect to unrelated charges in order to protect the direct and full-fledged right to counsel in the pending proceeding. In light of this rationale, a decision by investigators to refrain from questioning a suspect until he or she is no longer represented by counsel on unrelated charges protects the interests with which we were concerned in Rogers as fully as a decision to question the suspect in the presence of counsel while the prior charges are pending.

"In addition, we consider that the rule advocated by the defendants would present difficulties in application at least equal to those that prompted us to adopt the bright-line rule of Rogers. It would require police officers, before questioning a suspect, to ascertain whether at any point during the investigation the suspect was represented by counsel on unrelated charges and, if so, whether someone involved in the investigation made a conscious decision to refrain from questioning the suspect at such time in order to 'circumvent’ the defendant’s right to counsel. Such a requirement would seriously impede investigations and would only benefit those with the longest arrest records.

"Similar difficult questions of motive and timing would be presented to suppression courts. In resolving these questions, the courts would find themselves second-guessing, and inevitably interfering with, the prosecutorial prerogative to dismiss a case or delay an arrest. The rules we have adopted and applied here, which focus on the suspect’s status at the time of the interrogation, not only fully protect the interests with which we were concerned in Rogers, but also avoid these problems by providing an objective measure to guide law enforcement officials and the courts.” (People v Robles, 72 NY2d, supra, at 698-699.)

The recent Fourth Department case of People v Colquit (— AD2d — [Mar. 10, 1989]), upon which the dissent places much reliance, actually reinforces the position of the majority. As the court there pointed out, "Ciminelli and Lieutenant Mayer were engaged jointly in the Beal homicide investigation, and Mayer’s actual knowledge that defendant was represented on the menacing charge, acquired subsequent to dismissal of the harassment charge, must be imputed to Ciminelli (see, People v Bernal, 92 AD2d 489; see also, People v Garofolo, 46 NY2d 592; People v Pinzon, 44 NY2d 458)” (emphasis added).

The second argument of the defendant is that the issue of whether his statements were "involuntarily made” should have been submitted to the jury.

At first blush, both statute and case law would appear to buttress this position, i.e., that the court should have charged the jury to decide the "voluntariness” of the defendant’s statements not only insofar as his Fifth Amendment rights under Miranda v Arizona (384 US 436) were concerned, but also encompassing his Sixth Amendment right to counsel under Rogers-Bartolomeo. Thus, CPL 710.70 (3) provides, in pertinent part: "Nothing contained in this article * * * precludes a defendant from attempting to establish at a trial that evidence introduced by the people of a pre-trial statement made by him should be disregarded by the jury * * * on the ground that such statement was involuntarily made within the meaning of section 60.45. Even though the issue of the admissibility of such evidence was not submitted to the court, or was determined adversely to the defendant upon motion, the defendant may adduce trial evidence and otherwise contend that the statement was involuntarily made. In the case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made.” (Emphasis added.)

CPL 60.45 (2) (b) (ii) defines a confession, admission or other statement as "involuntarily made” when it is obtained, inter alia, "in violation of such rights as the defendant may derive from the constitution of this state or of the United States”.

The Court of Appeals has followed the literal language of the statute and found that claims other than those involving the issue of voluntariness in the generally understood classic sense would be appropriate for submission to the jury. (People v Graham, 55 NY2d 144 [whether Miranda warnings given and whether defendant waived those rights]; People v Griswold, 58 NY2d 633 [whether defendant invoked his right to counsel prior to making incriminating statements].) However, upon analysis, it is clear that the issue in those cases, unlike the one under consideration, involved the factual one of whether the defendants knowingly and voluntarily waived constitutional rights.

Here, on the other hand, while there is no dispute as to defendant’s waiver of his rights, the issue sought to be submitted to the jury is the "reasonableness” or propriety of Detective Cutter’s belief that defendant’s prior case had been disposed of, or whether Detective Cutter acted in "bad faith”. To decide this issue, however, would require a knowledge of the criminal justice system which not only lay people, but even lawyers who are not active in such practice, do not possess. What defendant would like, and the dissent agrees he should have, is a jury resolution of the officer’s "reasonableness” or "bad faith” in believing that pending charges had been dismissed. This, however, requires a resolution of a question of law which only the court can make. Here, unlike Graham and Griswold (supra), there was no factual issue to submit to the jury. There is no factual dispute that Detective Cutter was told the complaining witness did not appear on four occasions and defendant explained that he had been "let go”. What is left, therefore, is the legal issue of whether the detective’s belief that the case had been dismissed based on these undisputed facts was reasonable as a matter of law.

The Trial Judge, in a detailed, scholarly decision denying defendant’s motion to set aside the verdict, noted appropriately:

"If a literal interpretation of the words 'involuntarily made’ as used in CPL 60.45 were to require the issue of right of counsel to be submitted to a jury because it is a right derived from the Constitution, then it will be equally argued that the same rule must apply to statements obtained in violation of other constitutional challenges. For example, if a statement was obtained where there was allegedly no probable cause (Dunaway v New York, 442 US 200 [1979]) do we submit the issue of probable cause to the jury? Where a person is arrested in his home without a warrant do we submit that issue and the issue of exigency to the jury? (Payton v New York, 445 US 573 [1980].) If a statement is first obtained in violation of Miranda, and a subsequent statement is made after proper warnings have been given do we submit to the jury the issue of attenuation (People v Tanner, 30 NY2d 102 [1972]) or the issue of whether the statements '[were] in reality a single continuous chain of events’? (People v Chapple, 38 NY2d 112, 114 [1975].) * * *

"On the facts presented, how is the jury to determine whether or not there was a duty on the part of the police officer to make further inquiries into the status of defendant’s unrelated case? Bertolo (supra, at 118) requires the Judge at the hearing to take into consideration the extent of the police knowledge, the severity and notoriety of the prior charges and the good or bad faith of the police in determining the officer’s duty to inquire. How is a jury to evaluate these factors? What evidence would have to be presented in such a case? Wouldn’t hearsay have to be introduced as it is in the pretrial hearing? Are police experts to testify at what point a case is dismissed when a complainant fails to appear? Are we to admit statistics on that subject? Are other court officials such as Judges, clerks, District Attorneys, defense counsel, etc., going to testify as to their experiences? What evidence would have to be introduced for a jury to be able to pass upon the severity and notoriety of prior charges? It is no denigration of the jury system to suggest that such complex issues, which involve mixed questions of law and fact, must continue to remain solely with the Judge.” (People v Medina, 138 Misc 2d 653, 661-662, supra.)

It was not in derogation of the jury system (People v Graham, 55 NY2d, at 152, supra) to conclude that defendant’s claim as to the admissibility of his confession should not have been submitted to the jury, since resolution of that claim required a conclusion of law to be decided by the court.

Accordingly, the judgment of the Supreme Court, New York County (Alfred H. Kleiman, J., at suppression hearing and trial), rendered January 5, 1987, after jury trial, convicting defendant of two counts of murder in the second degree and sentencing him to two consecutive terms of 25 years to life, should be affirmed.