Opinion
770/08.
Decided March 15, 2010.
Defendant is charged with acting in concert with codefendants Kareem Warner and Sean Baker to commit Murder in the Second Degree, Robbery in the First Degree and other related charges in connection with the death of Ramiro Ramos-Luna. Defendant moves to suppress his statement to police on the grounds that it was the fruit of an unlawful arrest and in violation of his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
This decision pertains only to defendant Allick's suppression motion. The Court had previously rendered decisions with respect to the codefendants' pretrial motions.
On January 13, 2010, a Huntley/Dunaway hearing was commenced before the Court, and was completed on January 19, 2010. Detectives Carlos Infante and Frank Moceri testified for the People. Defendant and his mother, Ina Allick, testified for the defense. The Court finds that all witnesses testified candidly, credibly and to the best of their recollection. Indeed, with respect to the circumstances of defendant's arrest and the invocation of counsel, the witnesses were largely consistent with one another. The one notable exception was whether defendant actually made the statement, which was the subject of the motion to suppress. In direct contradiction to Detective Infante's testimony, defendant denied putting his hand on his head and telling the officer that his "life was over." With respect to this conflict, the Court rejects defendant's claim that he never made such a statement, and finds that Detective Infante's testimony on this subject was credible. Accordingly, with the exception of defendant's denial that he made a statement, the Court adopts the testimony of all of the witnesses in their entirety.
The Court had also granted a Rodriguez hearing with regard to the identifications made by eyewitness Barbara Coles. However, at the hearing, the parties stipulated that all three defendants had a prior relationship with Coles, mooting the need for a Rodriguez hearing.
FINDINGS OF FACT
People's Case
On October 6, 2007, at 1:30 a.m., Ramiro Ramos-Luna (also known as Romero L. Ramos) was the victim of a homicide in the vicinity of 916 to 926 Southern Blvd, Bronx County in the confines of 41st precinct. Detective Carlos Infante of the Bronx Homicide Task Force was assigned to the investigation, partnering with Detective Miraglia of the 41st Precinct Detective Squad. During his investigation, Detective Infante determined that Barbara Coles had been a witness to the homicide and, further, that she was personally acquainted with three individuals involved in the robbery of Mr. Ramos-Luna, which culminated in his death. Detective Infante further received a surveillance videotape of the immediate vicinity of the incident and generated a number of still photographs from the videotape.
As stated supra, defendant and his codefendants stipulated to the past relationship with Ms. Coles.
On the evening of January 26, 2008, at about 11:30 p.m., Detective Infante went to Barbara Coles' home and had her view an array of six photographs, one of which was of defendant. When asked if she recognized anyone involved in the homicide she witnessed on October 6, 2007, she identified the sixth photograph — a picture of defendant. After her identification, Ms. Coles signed her name underneath that photograph. Detective Infante did not show Ms. Coles either the surveillance videotape or any still photographs generated from the videotape. Other than detectives, no one else was present when Ms. Coles made the identification.
The photographic array was introduced into evidence as People's Exhibit Thirteen. On January 27, and 29, 2008, Coles identified Sean Baker and Kareem Warner, respectively, in two separate photographic arrays.
After the photographic identification, Detective Miraglia prepared a Wanted Identification Card ("I-Card") for defendant, and submitted it to the Bronx County Wanted Apprehension Team. The I-Card indicated that defendant was a person of interest as a possible perpetrator in the homicide of Ramos-Luna.
The I-Card was introduced as People's Exhibit Twelve.
On February 8, 2008, at approximately 5:00 a.m., Detective Frank Moceri of the Wanted Apprehension Team, accompanied by four other members of the team, went to defendant's home at 926 Southern Boulevard.Detective Moceri knocked on defendant's apartment door, and asked for defendant. Neither Detective Moceri nor the other officers present entered defendant's apartment. Defendant voluntarily came out into the hallway. There, Detective Moceri informed defendant that he was wanted for questioning in connection with a case in the 41st Precinct. Defendant was apprehended and transported without incident to the Bronx Detective Borough at 1086 Simpson Street. From there, defendant was taken to the 41st Precinct where he was placed in an interview room around 8:00 a.m.
Around 10:30 that morning, Detective Infante arrived at the 41st Precinct. In the presence of Detective Miraglia, Detective Infante administered Miranda warnings to defendant. Defendant indicated that he understood each constitutional right, responding "yes" to each question. However, when Detective Infante informed defendant that he had the right to remain silent until he consulted an attorney, and asked if he understood that right, defendant replied, "Could I have an attorney?" Detective Infante responded, "Yes," and asked if he could first finish reading him his rights. The detective then continued to read defendant his rights. According to Detective Infante, he did not stop questioning because defendant did not state that he wanted an attorney but merely asked if he "could" have one.
The Miranda warnings administered to defendant were admitted into evidence as People's Exhibit Ten.
Upon completing the Miranda warnings, Detective Infante asked defendant if he was willing to make a statement, to which defendant responded affirmatively. Detective Infante had written each of defendant's affirmative responses on the printed form and had defendant place his initials next to each response. However, the detective did not write defendant's question about an attorney on the Miranda form. Instead, he wrote "yes" next to that question. The form was signed by defendant, as well as Detectives Infante and Miraglia.
After indicating that he was willing to make a statement, the detectives asked defendant where he was at the time of the homicide. Defendant told the detectives that he was at his girlfriend's house. Detective Infante told defendant that he had spoken to Kareem Warner and Corey Shumlin during his investigation, and that both men placed defendant at the scene of the crime. The detective showed defendant the still photographs generated from the videotape and indicated who was in each photograph. Upon viewing the photographs, defendant raised his hand to his forehead, and said, "My life is over." He then requested an attorney. At that point, the detectives stopped questioning defendant. Neither Detective Infante nor Detective Miraglia was contacted by an attorney or a family member on defendant's behalf prior to interviewing defendant. After they stopped questioning, Detective Infante was contacted by an attorney, Maria Tobia, on defendant's behalf. Detective Infante informed Ms. Tobia that defendant had not made any statements to police. According to the detective, he did not view defendant's remark as a statement. Defendant's Case
The still photographs generated from the videotape which were shown to defendant were admitted into evidence as People's Exhibits Three and Six.
Detective Infante summarized defendant's statements in a DD-5, which was admitted into evidence as People's Exhibit Eleven.
A letter written by Ms. Tobia to Detective Infante was admitted into evidence as Defendant's Exhibit B. In the letter, Ms. Tobia states that she was writing to confirm her conversation with the detective in which he informed her that defendant made no statements.
During a conversation with the prosecutor, the detective made the same assertion. However, the prosecutor explained to the detective that defendant's statement that his "life is over" was, indeed, a statement, evincing a consciousness of guilt. During cross-examination, the detective initially had no recollection of this conversation with the prosecutor. However, he was later recalled to the stand, and confirmed this conversation with the prosecutor.
Defendant's mother, Ina Allick, testified for the defense. Ms. Allick stated that on February 8, 2008, at about 5:00 a.m., she heard a knock on her front door. When she opened the door, she found five detectives standing in the hallway. The detectives asked if her daughter, Odessa Allick, was at home. Ms. Allick told the detectives that she was not home. The detectives then asked if her son, defendant, was at home. She replied affirmatively, whereupon defendant came to the door. Ms. Allick told defendant to go with the detectives because he had "nothing to hide." Defendant left the apartment and went with the detectives. Ms. Allick testified that the police never entered her apartment, remaining outside her door the entire time.
At about noon, defendant contacted his mother, and told her he was at the 41st Precinct. Ms. Allick immediately went to the precinct, and saw defendant in the presence of two detectives. She asked defendant if he had said anything to police. Detective Infante told her that defendant had not made any statements to them, and had requested an attorney. Ms. Allick then contacted Ms. Tobia, and told her defendant had been arrested.
According to Ms. Allick, defendant has been diagnosed with a learning disability, and consequently has been in special education programs throughout his education from pre-kindergarten through twelfth grade. Ms. Allick characterized defendant as a "slow" learner. While he can read and write English, she stated that he had difficulty comprehending.
Defendant testified in his own defense. Defendant testified that on February 8, 2008, at 5:00 a.m., he was asleep when the police knocked on his door. His mother told him that he should go with the detectives because he had "nothing to hide." According to defendant, there were three detectives standing outside his door, a fourth detective standing in the lobby and a fifth detective standing in front of the building. Defendant left with police, was handcuffed in the lobby and taken to Simpson Street. At about 7:30 a.m., he was moved to the 41st Precinct and placed in an interrogation room. According to defendant, the police never threatened him in any way.
Defendant was not questioned before his arrival at the 41st Precinct.
Detective Infante then administered Miranda rights to defendant. When he was informed that he had the right to remain silent until he consulted with an attorney, defendant replied, "Can I have one?" Defendant testified that he meant "can I have a lawyer." Detective Infante responded, "All right, no problem," and asked if he could finish reading the rest of his rights. The detective finished advising defendant of his rights, and then proceeded to question defendant. Defendant was never supplied with an attorney.
Although he initially denied it, defendant admitted that he had placed his initials on the Miranda form.
Defendant testified that Detective Infante showed him photographs and identified him, along with Kareem Warner and Sean Baker in the photographs. Defendant denied that he ever placed his hand on his forehead and stated, "My life is over." As stated supra, this Court rejects defendant's denial of this statement. If Detective Infante were going to fabricate a statement, it certainly would have been far more inculpatory than the statement he attributed to defendant. Thus, defendant's testimony in this regard is rejected.
When defendant was shown the still photographs, he asked, "Can I have an attorney?" At that point, Detective Infante stopped questioning him. Defendant testified that although he requested food, he was never given anything to eat. He was permitted to use the bathroom, but remained handcuffed.
On cross-examination, defendant testified that he had three prior arrests. In 2006, he had been arrested for marijuana possession in June, and for menacing and harassment in December. In December of 2007, he was arrested for robbery, and was represented by Maria Tobia.
Admitted into evidence as defendant's Exhibit C, a psycho-educational evaluation of defendant was conducted at Rikers Island Correctional Facility on March 19, 2009. The documents reveal that defendant's academic scores are consistent with a learning disability, and that he had attended some special education classes.
CONCLUSIONS OF LAW
Defendant's motion to suppress his pretrial statement on the ground that it was the fruit of an unlawful arrest is denied. It is well-settled that "information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" ( see People v. Martin, 221 AD2d 568, 569 [2d Dept. 1995]; People v. Pagan, 184 AD2d 738 [2d Dept. 1992]; People v. Newton, 180 AD2d 764 [2d Dept. 1992]). A witness' photographic or corporeal identification of a defendant provides police with probable cause to effectuate his arrest ( see People v. DeLaCruz, 223 AD2d 472 [1st Dept. 1996]; People v. Foster, 209 AD2d 348 [1st Dept. 1994]; People v. Mitchell, 170 AD2d 542 [2d Dept. 1991]; People v. Bilski, 170 AD2d 517 [2d Dept. 1991]).
Here, Barbara Coles, an eyewitness, viewed a photographic array, and identified a photograph of defendant as one of the people involved in the homicide of Ramos-Luna. This identification was clearly sufficient to establish probable cause to arrest defendant for the crimes alleged ( see People v. Williams, 236 AD2d 642 [2d Dept. 1997] [complainant's unequivocal identification of defendant during canvass provided probable cause for arrest]; People v. Palacio, 121 AD2d 282 [1st Dept. 1986]; see also Bilski, 170 AD2d at 518; People v. McCain, 134 AD2d 623 [2d Dept. 1987]; People v. Rhodes, 111 AD2d 194 [2d Dept. 1985]). Accordingly, defendant's statement was not the fruit of an unlawful arrest.Defendant also moves to suppress the statements he made to police on the ground that they were made in violation of his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Specifically, defendant claims that upon being informed of his right to counsel, he immediately asked if he could have an attorney. He argues that despite this request, the police continued to question him without the presence of counsel. In opposition, the People assert that defendant did not unequivocally invoke his right to counsel but merely inquired whether he had the right to have an attorney present. For the reasons set forth below, defendant's motion is granted.
In his written memorandum, defendant concedes that the probable cause issue was "satisfied at the hearing."
Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a suspect has the right to counsel during a custodial interrogation. The People have a heavy burden of establishing that a defendant knowingly and voluntarily waived his right to counsel ( Miranda, 384 U.S. at 475; People v. Ramos, 40 NY2d 610). The right to counsel attaches when a suspect in custody unequivocally requests an attorney ( People v. Cunningham, 49 NY2d 203). Once a defendant requests the assistance of an attorney, the police are obligated to "scrupulously honor that request" and cease questioning ( People v. Stroh, 48 NY2d 1000, 1001; see also Miranda, 384 U.S. at 474-75). Any further questioning by police in the absence of an attorney is unlawful ( see Stroh, 48 NY2d at 1001; People v. Jones , 21 AD3d 429 [2d Dept. 2005]). Upon the invocation of counsel, "any purported waiver of that right obtained in the absence of counsel is ineffective" ( see People v. Glover, 87 NY2d 838, 839; see also People v. Esposito, 68 NY2d 961; Cunningham, 49 NY2d at 210 [uncounseled waiver of constitutional right not deemed voluntary if made after right to counsel invoked]).
In order for a suspect to invoke the right to counsel under Miranda, his invocation must be unequivocal. When a defendant's request is ambiguous or equivocal, the right to counsel does not attach ( see People v. Hicks, 69 NY2d 969; People v. D'Eredita, 302 AD3d 925 [4th Dept. 2003]; People v. Pinkney, 48 AD3d [2d Dept. 2008]; People v. Ashraf, 186 AD2d 1057 [4th Dept. 1992] [all holding that defendant's inquiry as to whether he should get attorney not unequivocal request]). There must be, at minimum, some statement that can be reasonably construed as a request for an attorney ( McNeil v. Wisconsin, 501 U.S. 171). "Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant" ( Glover, 87 NY2d at 839; see also Jones, 21 AD3d at 429).
In this case, defendant was advised of his Miranda rights while in custody. It is uncontroverted that upon being advised of his right to counsel, defendant asked if he "could" have an attorney. Although Detective Infante responded affirmatively, he asked defendant if he could first finish reading him his Miranda rights. He then proceeded to interrogate defendant outside the presence of counsel. Detective Infante testified that he did not stop questioning because defendant did not state he wanted an attorney but merely inquired if he "could" have one.
Both Detective Infante and defendant used "can" and "could" interchangeably.
Viewed in the context of this record, defendant's statement was a "clear and categoric" request to have counsel present ( see People v. Woodward, 64 AD2d 517 [1st Dept. 1978] [defendant's statement "May I have Legal Aid?" during administration of rights constituted invocation of counsel]). A reasonable police officer in Detective Infante's position should have understood that defendant was, in fact, requesting an attorney ( see People v. Jones , 21 AD3d 429 [2d Dept. 2005]). There is no evidence in this record that defendant's demeanor or the manner of his expression were in any way equivocal. As for the particular words used, defendant's statement, "Could I have an attorney," certainly constituted an articulated desire to have counsel present. Instead of honoring defendant's request for counsel and ceasing any further questioning, Detective Infante interrogated defendant without counsel present. In fact, when defendant asked for counsel, the detective replied that he could and asked if he could first finish reading him his rights. This response indicated to defendant that the detective was, indeed, going to provide him with an attorney. Thus, on this record, "where there were no additional facts upon which a contrary inference could be drawn," further inquiry by police was prohibited once defendant requested counsel ( see People v. Porter , 9 NY3d 966, 967 [defendant's words "I think I need an attorney," coupled with officer's notation that defendant requested attorney demonstrates unequivocal invocation of right to counsel]; People v. Esposito, 68 NY2d 961 [defendant's statement "I might need a lawyer"constituted request for counsel]; see also People v. Suarez, 185 AD2d 800 [1st Dept. 1992]). Once defendant invoked his constitutional right to counsel, his subsequent waiver obtained in the absence of counsel was ineffective ( see Esposito, 68 NY2d at 962).
Even if Detective Infante interpreted defendant's statement as merely an inquiry as to whether he had the right to counsel and not an actual request to have an attorney present, he should have sought clarification from defendant to eliminate any possible ambiguity. "A proper adherence to the spirit and intent of Miranda at the very least dictated that the police clarify his rights at that point and re-emphasize that if he wanted an attorney one would be obtained for him and that he could remain silent until the attorney arrived" ( see People v. Stroh, 63 AD2d 326, 330 [2d Dept.], affd. 48 NY2d 1000 [where defendant requested either attorney or priest, police should have ceased interrogation and sought clarification by re-emphasizing defendant's rights]; see also People v. Hayes, 127 AD2d 608 [2d Dept. 1987] [following defendant's comment about calling attorney, prosecutor properly made further inquiry by ascertaining whether defendant wished to invoke right to counsel]; People v. Woodward, 64 AD2d 517 [1st Dept. 1978] [any ambiguity created by defendant's request for "Legal Aid" was due to prosecutor's failure to clarify Miranda warning and "clearly and effectively explain" defendant's right to counsel]).
Here, Detective Infante should have stopped his interrogation of defendant, and readvised him of his right to have counsel present since, at a minimum, defendant's question about the availability of an attorney required clarification. He then should have expressly asked defendant whether he wished to have an attorney present. In view of defendant's learning disabilities, he certainly could have benefitted from such clarification. However, Detective Infante failed to ask any questions directed toward clarification. Instead of making any follow-up inquiries whatsoever, he failed to respond to defendant's question, continued to advise him of his other rights and then interrogated him in the absence of counsel. Accordingly, since Detective Infante failed to stop the interrogation and clarify any ambiguity that may have existed, defendant's statement must be suppressed ( see Stroh, 48 NY.2d at 1001; Woodward, 64 AD2d 517).
This Court rejects the People's claim that Detective Infant had, in fact, clarified any ambiguities presented by defendant's request. The People argue that once defendant asked if he could have a lawyer, the detective replied, "yes," and then requested permission to continue the administration of rights. According to the People, defendant gave his consent to allow the detective to continue, which established that defendant both understood his right to counsel and had effectively waived that right. However, the People's claim is not supported by the record. Neither defendant nor Detective Infante testified that defendant expressly gave permission to have the detective continue the administration of rights. Instead, the record reveals that the detective failed to answer defendant's question about an attorney and continued to advise defendant of his other rights. Nor did he seek to clarify what defendant was asking.
The People's claim that defendant's criminal history suggests a familiarity with his right to counsel is also rejected. There is no evidence in this record that defendant was previously advised of his Miranda rights during his prior arrests, the majority of which were for misdemeanor offenses.
The cases cited by the People in support of their position are clearly distinguishable from the instant case. In People v. Powell, 304 AD2d 410, 411 (1st Dept. 2003), the court held that "defendant's comment that he thought he would wait for a lawyer was not an unequivocal assertion to his right to counsel when viewed in the totality of the circumstances." The record established that after defendant made this statement to police, he spoke with his wife and then initiated a conversation with the detective, in which he stated that he wanted to speak with a prosecutor. Before speaking to defendant, the prosecutor "made a careful inquiry, in which he called defendant's attention to his comment about waiting for a lawyer. Defendant's responses clarified his prior comment and ensured that he had not invoked the right to counsel and had no wish to do so" ( id. at 411). Thus, Powell is clearly distinguishable from defendant's case because there the defendant's comment was clarified by the prosecutor who conducted a "careful inquiry" before determining that defendant did not wish to invoke his right to counsel.
In People v. Dehmler, 188 AD2d 1056 (4th Dept. 1992), also cited by the People, the court found that defendant's inquiry, "Can I call a lawyer?" did not constitute an unequivocal intention to retain counsel. In Dehmler, the defendant subsequently told police that "he was not asking for an attorney but only asking whether he was allowed to contact one" ( id. at 1056). Thus, Dehmler is clearly distinguishable from the case at bar since the defendant in Dehmler clarified his own statement, and expressly told police he was not invoking his right to counsel.
In People v. Cotton, 277 AD2d 461 (2d Dept. 2000), also relied upon by the People, defendant stated, "I have counsel," during the administration of Miranda rights. The court held that defendant's statement did not constitute an invocation of the right to counsel. However, contrary to defendant's case, the police in Cotton clarified defendant's comment by rereading that Miranda warning to defendant, to which he replied that he understood. It is further distinguishable in that the defendant in Cotton did not expressly request an attorney but merely stated that he had an attorney.
Accordingly, since defendant invoked his right to counsel, the police were required to scrupulously honor this request and cease questioning. Since the police failed to do so, defendant's motion to suppress his pretrial statement to Detective Infante is granted.
This constitutes the decision and order of the Court.