People v. Dudley , 29 A.D.2d 232 ( 1968 )


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  • Del Vecchio, J.

    Defendant was convicted of murder in the first degree. His guilt was established-beyond a reasonable doubt by his oral admissions and a 17-page voluntary confession in question and answer form supported by independent additional proof that the deceased was murdered. This satisfies the demands of section 395 of the Code of Criminal Procedure. (People v. Louis, 1 N Y 2d 137.) It is significant that Mrs. Vella’s body bearing marks of murder was found at the place indicated by the defendant in his undisputed confession. In People v. Roach (215 N. Y. 592, 600) the court said: “ There must be evidence in addition to the confession to prove the corpus deHcti, but when * * * the corpus delicti is proved by independent evidence, and the defendant has voluntarily confessed his guilt, a case for the jury is made out, and a conviction based upon such testimony is warranted in law.”

    The area of disagreement between the majority and the dissenting Justices centers upon two issues: (1) whether it was reversible error to receive in evidence portions of the testimony of defendant’s wife as confidential communications, and (2) whether it may have been prejudicial for the prosecution to call as a witness the Justice of the Peace before whom defendant signed his confession.

    With respect to the wife’s testimony: The defendant concedes that his wife could properly testify to his acts and words while Mrs. Vella was conscious as not being privileged, citing People v. Bessler (17 N Y 2d 174). It was there stated (p. 179): ‘‘ The conversation between defendant and his wife in the presence of Maxwell Slick, before he was slain, is admissible over the objection that it was a privileged communication (People v. Daghita, 299 N. Y. 194) inasmuch as privilege does not attach while a third person is present (People v. Melski, 10 N Y 2d 78; People v. McCormack, 278 App. Div. 191, affd. 303 N. Y. 782).”

    It is well settled that not all communications between husband and wife, when alone, are confidential. Only those which have been induced by the marital relation enjoy a privilege. (Park*234hurst v. Berdell, 110 N. Y. 386.) The record shows that at the time of the murder the defendant threatened to kill his wife if she disclosed what she had seen. This is strong evidence that he himself was not then relying on any confidential relationship to preserve the secrecy of his acts. This alone should be enough to remove the communications from the protection of the privilege. (Cf. People v. Melski, 10 N Y 2d 78, 81.)' Furthermore, upon all the evidence presented at the preliminary hearing to determine whether any of her testimony would be admissible, the court could properly find as a question of fact that the presumption of confidentiality had been rebutted. There was ample proof that the defendant had severely abused and mistreated his wife to show that the marriage was held together solely by fear and domination. This, together with his statement that 11 if you get out of line again, this same thing will happen to you ” supports the conclusion that none of defendant’s acts or statements at the time of the murder was induced by the marital relationship. (Poppe v. Poppe, 3 N Y 2d 312, 315.)

    In any event, during the trial defense counsel constantly objected to all of the wife’s testimony, but now contends that only that portion revealing what defendant said or did after Mrs. Vella was rendered unconscious was inadmissible. That testimony occupies only five pages of the record and the facts therein stated also appear in defendant’s 17-page confession. The testimony by defendant’s wife concerning what occurred both before and after Mrs. Vella was rendered unconscious did not vary materially from the facts stated by the defendant. As a matter of fact, his full and detailed written confession contained many items covering his acts and conversations with the deceased on the night of the homicide not mentioned in the wife’s testimony, some of which were corroborated by testimony of other witnesses. Moreover, it was the defendant himself who marked a map of the area to show where he had left and covered the victim’s body. It was with the aid of this map that the body was found 14 years after it had been buried.

    We conclude that this conviction does not depend upon the testimony of defendant’s wife and would affirm even if a portion thereof were inadmissible, upon the ground that under all the circumstances the error was harmless as merely admitting repetitious evidence which did not materially add to the People’s case.

    In People v. Ferola (215 N. Y. 285) there were admitted in evidence two confessions made by the defendant, one on her examination at the Coroner’s inquest after she had been charged with the homicide and the other to the District Attorney after *235the inquest. Without either of these conféssions the People’s case would have been insufficient to sustain the conviction. The court held that while her attendance as a witness before the Coroner was compulsory as a matter of law and in violation of her constitutional rights, since her voluntary statement to the District Attorney was admissible, the receipt in evidence of the prior statement did not require a reversal. The court said that although there were immaterial variances, the two statements were substantially alike in all essential respects, and therefore the admission in evidence of both statments was not prejudicial to the defendant, and the conviction was affirmed.

    With respect to the confession having been signed before a Justice of the Peace: Since an objection on this ground was not raised at the trial or on this appeal, ordinarily it would not now be considered. (People v. Hicks, 287 N. Y. 165, 174.)

    It does appear that while defendant and his wife were confined in jail in the State of Virginia the wife gave the police a statement to the effect that defendant had killed a woman in Syracuse, New York. After advising him of his right to counsel, his right to remain silent and that anything he said might be used against him, the police gave the wife’s statement to defendant who, after reading it, said the facts stated therein were generally true but he wanted to give his version of what occurred on the night of the killing. It was after this oral admission that the confession in question and answer form was typed out. Defendant read it, made several corrections and initialed them. Defendant was then taken before a Justice of the Peace who played no part in the making of the statement but merely acted as a Notary Public when defendant signed it on the trunk of the officer’s car in the driveway at the home of the Justice of the Peace.

    Before the commencement of the trial the court conducted a hearing to determine whether defendant’s oral admissions and his written confession were voluntary; at that time it determined that they had been voluntarily made and were admissible in evidence. The issue of voluntariness was subsequently submitted to the jury and implicit in its verdict is a finding of voluntariness beyond a reasonable doubt.

    Upon the trial there were no objections to the testimony of the Justice of the Peace on the ground that defendant had signed the statement before him and no questions were asked of him on cross-examination. When the People offered the written confession in evidence defendant objected, on the ground that “ the prosecution has failed to prove beyond a reasonable doubt that

    *236this statement was not given without coercion or force or duress, or in violation of his constitutional rights. ’ ’ It would seem that this objection has not saved the question for review. (Cf. People v. Ross, 21 N Y 2d 258.)

    We recognize that the Court of Appeals has disapproved the signing of confessions before a judicial officer. However, in this case defendant did not dispute or repudiate the contents of the confession nor deny the testimony of the witnesses concerning his oral admissions. Under these circumstances the technical error in having the defendant sign before a Justice of the Peace instead of a Notary Public does not necessitate a reversal. (Cf. People v. Randall, 9 N Y 2d 413, 425.)

    In People v. Foley (8 N Y 2d 153), People v. Oakley (9 N Y 2d 656) and People v. Warner (9 N Y 2d 670) the convictions were reversed because the confessions had been obtained either in the courtroom or in the office of the Justice of the Peace during or prior to arraignment on charges before him. Furthermore, each defendant in these cases testified that the facts recited in his statement were not true. Certainly, under those circumstances, the defendant would be prejudiced because the jury might well regard the fact that the statement was signed before a judicial officer as a guarantee of its truthfulness. In our case, defendant did not take the stand and offered no proof that the assertions in the statement were not true.

    Because of the conclusiveness of defendant’s guilt based upon his oral admissions and written confession supported by corroborative evidence, the allegedly improperly admitted evidence could not have affected the determination of the jury and should be disregarded under section 542 of the Code of Criminal Procedure. (People v. Nunziato, 233 N. Y. 394.)

    Accordingly the judgment of conviction should be affirmed.

Document Info

Citation Numbers: 29 A.D.2d 232

Judges: Goldman, Vecchio

Filed Date: 2/15/1968

Precedential Status: Precedential

Modified Date: 1/12/2022