Opinion
143–2017
03-20-2018
The PEOPLE of the State of New York, Plaintiff, v. Oscar DAVIS, Defendant.
Sullivan Legal Aid Panel, Inc., 11 Bank Street, Monticello, N.Y. 12701, By: Tim Havas, Esq., of counsel, Attorney for Defendant Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, N.Y. 12701, By: Julie M. Mohl, Executive ADA, of counsel, Attorney for the People
Sullivan Legal Aid Panel, Inc., 11 Bank Street, Monticello, N.Y. 12701, By: Tim Havas, Esq., of counsel, Attorney for Defendant
Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, N.Y. 12701, By: Julie M. Mohl, Executive ADA, of counsel, Attorney for the People
Frank J. LaBuda, J.
This matter comes before the Court on Defendant's motion to suppress statements she made to law enforcement subsequent to his arrest. This Court held a Huntley hearing over the course of several days and ultimately concluded on February 20, 2018. Defendant was present for the entirety of the hearing. At the conclusion of the hearing, the Court directed that counsel make additional submissions in support of their arguments, and additional oral argument was heard on March 16, 2018. The testimony adduced at the Huntley hearing, as well as the written submissions and further oral arguments of both the People and the Defendant were considered in the rendering of this Decision and Order.
For the reasons stated below, Defendant's motion to suppress is denied.
FINDINGS OF FACT
On or about September 20, 2017, Defendant was indicted by a Sullivan County Grand Jury of one (1) count each of Rape in the Second Degree, Criminal Sexual Act in the Second Degree, and Endangering the Welfare of a Child.
This matter proceeded according, with Defendant's Counsel filing an Omnibus Motion, wherein Defendant sought to suppress any and all statements made by him to police. Defendant requested, and the People did not oppose, pre-trial hearings including a Huntley hearing to determine whether Defendant's statements to police should be suppressed.
Defendant's Huntley hearing took place over the course of several days. New York State Police Investigator Jeffrey Dalton, New York State Police Investigator Michael Kelly, and New York State Trooper Richard Walter testified on behalf of the People. Gail Moore, Defendant's mother, testified on behalf of the Defendant.
The testimony at the hearing established and it is agreed: On or about July 30, 2015, Sullivan County Deputy Sheriff Jeffrey Morgan was flagged down near Defendant's residence by a family member of the alleged victim. Defendant's mother, Gail Moore, also called 911 around this time because a group of family members of the alleged victim had come to Defendant's residence to confront him about the alleged sexual contact between Defendant and the alleged victim, which occurred on or about July 26, 2015.
It is agreed that Deputy Morgan separated the alleged victim's family members from Defendant and his mother. New York State Police Investigator Michael Kelly then arrived on the scene pursuant to the 911 call made by Defendant's mother. Investigator Kelly testified that upon his arrival at Defendant's residence, approximately three (3) or four (4) family members of the alleged victim were present and obviously agitated and upset. Investigator Kelly had a discussion with the family members and told them to leave the premises and go to the State Trooper barracks if they wished to make a statement.
It is further agreed that the Defendant and his mother sat on their front porch with Deputy Morgan. Defendant was visibly upset and, when asked by Deputy Morgan if he was okay, Defendant replied "that girl put her mouth on my penis." Deputy Morgan stayed with Defendant and his mother on Defendant's porch until two (2) additional State Troopers arrived in response to the 911 call. According to Investigator Kelly's testimony, Defendant was not handcuffed, was not in police custody, and was otherwise not threatened or coerced into making any statements.
The testimony and evidence at the hearing established that Defendant voluntarily accompanied the State Troopers to the barracks to be interviewed. Upon arrival at the barracks, Defendant was placed in an interview room that is equipped with audio and video recording equipment. State Police Investigator Jeffrey Dalton testified that he immediately read Defendant his Miranda rights from a Miranda warnings card. The evidence and testimony at the hearing established that Defendant understood the warnings and did not wish to speak with an attorney. Investigator Dalton further testified that Defendant did not appear to be under the influence of drugs or alcohol, was never threatened or coerced, did not request to leave or stop the interview, and did not request an attorney.
During the interview, Defendant admitted to engaging in oral and vaginal sexual intercourse with the alleged victim. Defendant also drew a picture of the scene of the alleged incident, Defendant's bedroom. Defendant further executed a form consenting to the search of his cell phone. At the end of the interview, Defendant's oral statements were reduced to writing-typed by Investigator Dalton in Defendant's presence, read to Defendant with the opportunity to make corrections, printed, then read to Defendant again. Defendant then signed this written statement, which included Miranda warnings, and Investigator Dalton also signed this written statement acknowledging that he was a witness thereof. The interview was audio/video recorded and burned to a CD/DVD. The CD/DVD of the interview, a copy of the Miranda warnings card read by Investigator Dalton, Defendant's drawing, the two (2) page written statement executed by Defendant, and the executed consent form to search Defendant's phone were all admitted into evidence.
Defendant's mother, Gail Moore, then testified on Defendant's behalf. Ms. Moore testified that Defendant had an Individualized Education Program (IEP) when he was in school due to a speech impediment and reading issues. Ms. Moore testified as to the scene at her residence on July 30, 2015, wherein the alleged victim's grandfather, father, and brother came to confront Defendant regarding his alleged sexual contact with the alleged victim. Ms. Moore testified that two (2) uniformed police officers arrived at her home, were present for almost one (1) hour during which time they spoke with the Defendant, and the Defendant left with them. According to Ms. Moore, both she and Defendant told these (2) police officers that Defendant wanted an attorney, and that she had told them that Defendant has a learning disability.
On cross-examination, Ms. Moore admitted that she is aware that the alleged victim is younger than the Defendant, as she has known the alleged victim and her family for approximately twelve (12) years. Ms. Moore further admitted that Defendant graduated from high school. Ms. Moore could not identify who the two (2) police officers were or whether they were Sullivan County Sheriff's Deputies or New York State Troopers.
Ms. Moore had no memory of Deputy Morgan. Ms. Moore also claimed that the two (2) police officers who took Defendant to the barracks were wearing blue uniforms, not the gray uniforms of the New York State Troopers. It should be noted that Sullivan County Sheriff's Deputies wear black uniform shirts with gray uniform pants.
The People called a rebuttal witness, New York State Trooper Richard Walter, who testified that he arrived at Defendant's residence on July 30, 2015 in a marked vehicle and transported Defendant to the New York State Police barracks for his interview. Trooper Walter testified that Defendant was not handcuffed or otherwise restrained during his transport. Trooper Walter further testified that neither Defendant nor his mother asked for an attorney.
The Court's review of the recorded interview CD/DVD provides the following information: Prior to any discussion with Defendant, Investigator Dalton orally advised Defendant of his Miranda rights by reading same to Defendant from his Miranda card. Investigator Dalton then asked Defendant if he understood those rights, to which Defendant responded "yes." Investigator Dalton then asked Defendant if he wished to speak with him, to which Defendant again responded "yes." Defendant then immediately proceeded to make an oral statement to Investigator Dalton and Investigator Kelly about the events of July 26, 2015, including admitting to engaging in oral and vaginal sex with the alleged victim. Defendant was not handcuffed or otherwise restrained during the interview. Defendant was allowed to use the restroom several times, and was given multiple glasses of water. Defendant did tell the Investigators during the interview that he has a learning disability.
Approximately one (1) hour into the interview, after Defendant made oral admissions and completed his drawing of his bedroom as entered into evidence, Defendant requested that he be able to call his mother. The Investigators stated that he would be able to call his mother once they finished with the interview. Defendant then asked if he would need to stay overnight at the barracks. The Investigators responded that he would not be staying at the barracks overnight. Defendant thereafter executed the phone search consent form, which Investigator Dalton read to Defendant before he executed same, and asked if he would be going home that evening. The Investigators responded that Defendant would need to "go see the Judge first."
Investigator Dalton then began to type up Defendant's statement, in the presence of Defendant. Defendant then asked if his mother was present at the barracks, and if he could call her, saying that he wanted her to be with him when he went to court. Investigator Dalton told Defendant that he would be able to call his mother before going to court so that she could be present. Approximately fifteen (15) minutes later, Defendant asked when he would be "going to see the Judge," and if he could call his mother before then. Again, Investigator Dalton responded that he would be able to call his mother before he went before the judge.
At 5:43PM, approximately two (2) hours into the interview, while Defendant and Investigator Dalton were typing up Defendant's statement, Defendant asked Investigator Dalton "will I have a lawyer there explain to me what is going on?" Within the context of the conversation, the People convincingly argue that "there" referred to Defendant's arraignment before the local court judge. Investigator Dalton responded that Defendant could ask for an attorney, as Investigator Dalton had told him earlier, and that if he could not afford one, the judge would appoint an attorney to represent him. Defendant then asked Investigator Dalton which court he would be going to so he could tell his mother. Investigator Dalton responded that he would find out so that Defendant could let his mother know about the court arraignment.
Defendant executed his written statement, inclusive of written Miranda warnings at approximately 6:00PM. Investigator Dalton read the written Miranda warnings to Defendant again, stating that these were the same warnings that Investigator Dalton had told him about in the beginning of the interview. Defendant initialed each Miranda warning. Investigator Dalton also read Defendant's written statement to him in full prior to Defendant executing the written statement. Defendant was then taken to be fingerprinted, photographed, and arraigned.
In support of his motion to suppress, Defendant argued that his statements to police, and any subsequent physical evidence, should be suppressed as being obtained in violation of Defendant's Fifth and Sixth Amendment rights. Defendant contends that he was "in police custody" during his conversation with Deputy Morgan on Defendant's front porch, and Deputy Morgan failed to read Defendant his Miranda rights. Further, Defendant claims that he told police that he wanted an attorney as he was being transported to the State Police barracks. As such, his oral and written statements to Investigators Dalton and Kelly, as well as his drawing and any information derived from his cell phone, must be suppressed "as the fruit of the poisonous tree of [Defendant's] illegal interrogation."
Defendant further argues that he invoked his right to counsel during his interview with Investigator Dalton when he asked if he would "have an attorney there." Defendant contends that Investigator Dalton, at a minimum, needed to make further inquiry of whether Defendant wished to have an attorney at the time of the written statement preparation. Lastly, Defendant contends that he is learning disabled and the Investigators led him and "put words into his mouth" several times during the interview.
The People argue that Defendant was not in custody during his conversation with Deputy Morgan on his front porch, as Defendant was not handcuffed, restrained, or otherwise not free to leave. Deputy Morgan was present at Defendant's residence, at the request of Defendant's mother who called 911, and that Defendant made inculpatory statements as a result of Deputy Morgan's question as to Defendant's general welfare on the front porch of Defendant's home.
The People further argue that, prior to commencing the interview at the New York State Police barracks with Defendant, Investigator Dalton properly administered Miranda warnings and that Defendant sufficiently understood the Miranda warnings and his waiver thereof, and clearly expressed his willingness to speak with Investigators Dalton and Kelly without an attorney present. The People contend that the Defendant graduated high school and, even if he has a learning disability, Defendant was able to comprehend the Miranda warnings as they were read to him- twice- and Defendant clearly and appropriately communicated with the Investigators regarding both his Miranda rights and the subject matter of the investigation. The People claim that Defendant's drawing, the phone consent form executed by Defendant, and the written statement and Miranda warnings executed by Defendant were knowingly and properly obtained from a mentally competent Defendant.
Additionally, the People argue that at no time did Defendant explicitly request the presence of an attorney as to invoke his right to counsel. The People contend that it was only after the oral questioning of the Defendant ceased and at the time of reducing his statement to writing that Defendant asked if he would have an attorney present with him there at the arraignment, at which point the interview was over and the questioning had concluded. The People claim that there is no legal basis for Investigator Dalton to have again administered Miranda warnings or to make further inquiry of the Defendant. Further, the People argue that Defendant's questioning of whether he would have an attorney present with him at the arraignment demonstrates Defendant's understanding of the legal process and supports the notion that Defendant is competent to understand and waive his Miranda rights.
Lastly, the People contend that the testimony of Defendant's mother establishes that both Defendant and she requested an attorney prior to Defendant being transported to the State Police barracks is not credible, as she is an interested witness who clearly has an invested interest in the outcome of the case against her son. The People argue that the credible testimony of Investigators Dalton and Kelly, the credible testimony of State Trooper Walter, and Defendant's oral and written waivers of his Miranda rights established that Defendant did not invoke his right to counsel while being transported to the State Police barracks or at any time thereafter.
CONCLUSIONS OF LAW
"The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it ‘require[s] the special protection of the knowing and intelligent waiver standard’." Davis v. U.S. , 512 US 452 (1994), quoting Edwards v. Arizona , 451 US at 483 . If a suspect effectively waives his right to counsel after receiving the Miranda warnings, however, police are free to question him. Davis , supra . As set forth in Edwards , supra , if a suspect invokes his right to counsel, he cannot be questioned regarding any offense until a lawyer has been made available to the suspect.
As such, the Court must determine whether a suspect actually invoked his right to counsel. In Davis , supra , the United States Supreme Court held that a suspect's statement "Maybe I should talk to a lawyer" made during his interview with police after a knowing waiver of his Miranda rights was not an unambiguous and unequivocal invocation of his right to counsel and his statements to police would therefore not be suppressed. In so holding, Justice O'Connor writes:
Invocation of the Miranda right to counsel ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’ But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.
Rather, the suspect must unambiguously request counsel... he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect...
The rationale underlying Edwards is that the police must respect a suspect's wishes regarding his right to have an attorney present during custodial interrogation... [A] suspect must be told of his right to have an attorney present and that he may not be questioned after invoking his right to counsel. We also noted that if a suspect is ‘indecisive in his request for counsel,’ the officers need not always cease questioning.
We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. ‘Full comprehension of the rights to remain silent and request an attorney is sufficient to dispel whatever coercion is inherent in the interrogation process.’ A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection—if a suspect subsequently requests an attorney, questioning must cease—it is one that must be affirmatively invoked by the suspect.
...[W]e decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him... Unless the suspect actually requests an attorney, questioning may continue.
Davis , supra at 459–462 [internal citations removed].
It is well settled that the Appellate Division, Third Department has followed the Davis ruling, in that a suspect's statements to police shall not be suppressed when said statements are obtained after the suspect voluntarily waived his or her Miranda rights and where the suspect fails to unambiguously or unequivocally invoke his or her right to counsel. See , People v. Manos , 73 AD3d 1333 (3d Dept 2010) ; People v. Culver , 69 AD3d 976 (3d Dept 2010) ; People v. Fiorino , 130 AD3d 1376 (3d Dept 2015) [holding that "[m]erely inquiring as to whether he should bring (or should have brought) an attorney with him to the police station did not, under the particular facts of this case, constitute an unequivocal assertion of defendant's right to counsel."; People v. Engelhart , 94 AD3d 1238 (3d Dept 2012) [holding that a suspect stating "I don't want you to be mad at me, but I'm thinking about calling a lawyer" does not constitute an unequivocal assertion of her right to counsel and therefore did not invoke her right to counsel while being questioned]; People v. Hurd , 279 AD2d 892 (3d Dept 2001) [holding "[t]o be sure, an inquiry about whether or not one should contact an attorney does not, without more, constitute an unequivocal invocation of the right to counsel."]. A person's right to counsel indelibly attaches either where formal judicial proceedings against a defendant have commenced or where an uncharged defendant in police custody has retained or requested an attorney. People v. Cade , 110 AD3d 1238 (3d Dept 2013) . If a suspect is not in custody when he or she invokes the right to counsel, such a request can be withdrawn by the suspect and police can continue questioning. Id.
Whether a suspect has unequivocally and unambiguously invoked his right to counsel "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." People v. Glover , 87 NY2d 838 (Ct App 1995) . See also, People v. Slocum , 29 NY3d 954 (Ct App 2017) ; People v. Edwards , 14 NY3d 733 (Ct App 2010) ; People v. Jemmott , 116 AD3d 1244 (3d Dept 2014) . Such a determination requires making credibility assessments of the witnesses and their testimony, such as the interviewing officer. People v. Phoenix , 115 AD3d 1058 (3d Dept 2014) . Lastly, this determination also requires that the Court review the totality of the circumstances, such as whether the defendant went with the police voluntarily, whether Miranda rights were properly administered, or whether the police officers "sealed off the most likely avenue by which assistance of counsel could reach him by means of deception and trickery," such as refusing to allow a suspect to call an attorney. People v. Jabaut , 111 AD3d 1140 (3d Dept 2013), quoting People v. Townsend , 33 NY2d at 37 (Ct App 1973) . "Phrases such as ‘I think’ or ‘maybe’ do not necessarily establish that a request for counsel is uncertain or equivocal... The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney." Jemmott , supra .
HOLDING
First, we reject Defendant's argument that he was in custody when he sat on his front porch with his mother and Deputy Morgan. Defendant was at his own residence and was not handcuffed or otherwise restrained. There was no evidence or testimony to suggest that the conversation between Defendant and Deputy Morgan was confrontational, or that any improper coercive tactics or trickery were employed by Deputy Morgan. As such, there is no basis to conclude that Deputy Morgan was legally obligated to provide Defendant with his Miranda rights. See , Culver , supra ; Cade , supra . Further, questions as to whether the Defendant was okay and about the confrontation with the alleged victim's family members are threshold scene questions designed to clarify the situation and ascertain whether there are any immediate threats to safety. See , Jemmott , supra .
Defendant then voluntarily, under police escort, went to the State Police barracks for interview. Defendant was immediately and properly advised of his Miranda rights, sufficiently acknowledged his understanding of those rights, and verbally assented to his waiver of same. Defendant then proceeded—without undue influence or coercion from police—to give inculpatory statements as to the events that occurred on July 26, 2015. At no point was Defendant handcuffed or otherwise restrained. Defendant was provided with several glasses of water and was allowed to use the restroom several times over the course of the approximately three (3) hours that Defendant was in the State Police barracks interview room. As such, even if we were to conclude that Defendant was in custody at this point, Defendant had already received and voluntarily waived his Miranda rights prior to making any statements.
Detective Walter testified that there was no conversation with the Defendant during the ride to the New York State Police barracks.
A review of the interview shows that at no point were the questioning tactics of Investigators Dalton and Kelly overtly or unduly coercive, threatening, or deceitful. In fact, Investigators Dalton and Kelly went to great lengths to ensure that Defendant was understanding the subject matter of the interview, such as asking Defendant to clarify how he defines certain terms and conduct. The Investigators asked whether Defendant was under the influence of any drugs, alcohol, or medication that would impair his understanding of their discussion. Further, Investigator Dalton read aloud to Defendant in full the Miranda warnings card, the phone search consent form, and Defendant's written statement inclusive of further Miranda warnings, and explained all in simplified terms, prior to having Defendant execute same. The Investigators took these measures prior to Defendant mentioning that he had a learning disability, and after each reading of these documents, Defendant verbally assented to understanding what had been read to him, then executed the documents as instructed.
All of which is preserved on the New York State Police's interview CD/DVD as entered into evidence.
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Defendant gave his inculpatory statement to the Investigators, made his drawing of the scene where the alleged sexual contact took place, and signed the phone search consent form following his knowing and voluntary waiver of his Miranda rights. There is no reasonable basis as reflected in the record to believe that Defendant did not knowingly or intelligently understand the rights he was waiving, what he was being read, or what he was signing. See , People v. Orlando LL , 188 AD2d 685 (3d Dept 1992) ; People v. Grimes , 210 AD2d 800 (3d Dept 1994) . As such, Defendant's oral statement to the Investigators, his drawing, and the phone search consent form and any information derived therefrom would be admissible at trial, as they were rendered prior to any purported invocation of counsel. See , Cade , supra ; People v. Williams , 266 AD2d 647 (3d Dept 1999) .
Defendant contends that he invoked his right to counsel when he stated "Will I have a lawyer there to explain to me what is going on?" It is important to reiterate that this Court, in reviewing the interview video, finds it is evident that Defendant was referring to his arraignment when he said "there." At no time during the interview did Defendant ask to speak with or call an attorney, nor did Defendant request to terminate the interview. Therefore, it cannot be said that Defendant unambiguously and unequivocally invoked his right to have counsel present with him at the interview. Further, Investigator Kelly had no legal obligation to inquire of Defendant further as to whether he was invoking his right to have counsel present during the interview at the New York State Police barracks. At that time, Defendant had already been read and waived his Miranda rights. Although Defendant requested to call his mother and those requests were denied by the Investigators until after the interview concluded, Defendant did not indicate that he wanted to seek his mother's assistance in retaining an attorney or for legal advice and as such these requests could not be seen as Defendant invoking his right to counsel. Jabaut , supra .
We reject the version of July 30, 2015 events as set forth in the testimony of Defendant's mother, Gail Moore. We note that Ms. Moore is an interested witness and understandably has an invested interest in the welfare of her child, the Defendant. This, coupled with Ms. Moore's inability to remember particular details of these events and State Trooper Walter's credible testimony that neither Defendant nor his mother requested the presence of counsel, lead this Court to find that Ms. Moore's testimony shall not be credited.
Therefore, this Court finds that Defendant was timely and properly administered Miranda warnings and knowingly and voluntarily waived these rights prior to his giving of inculpatory statements to police. At no point did Defendant unambiguously and unequivocally invoke his right to counsel. This Court finds that all of Defendant's oral and written statements and information provided to Deputy Morgan and Investigators Dalton and Kelly were voluntarily obtained in all respects and are therefore admissible at trial.
Based on the above, it is
ORDERED that Defendant's motion to suppress his statements and confession is denied in its entirety.
This shall constitute the Decision and Order of this Court.