Opinion
564-2008.
Decided November 4, 2009.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, NY, by ADA Jonathan Kaye, Attorney for the People.
Joel Medows, Esq., New York, New York, Attorney for the defendant.
The defendant is charged with Murder in the Second Degree, et al. A Wade/Huntley hearing was conducted before this court on October 28th and 29th, 2009. The People called two witnesses at the hearing: Detective Kevin Stumpf and Assistant District Attorney John Giannotti. I found their testimony to be credible, reliable and worthy of belief.
Findings of Fact
On September 10, 2007, Dwayne Smith was shot to death on a Brooklyn street. Detective Stumpf, of the 70th Precinct, was assigned to investigate. His initial interview with witnesses resulted in two possible suspects: the defendant, also known as "Scrappy" and another individual, Brian Smith, also known as "Cocaine."
Detective Stumpf prepared a photo array using the police department's photo management system. One of the arrays he prepared contained an array in which the defendant was the subject. On September 22, 2007, this array was shown to witness number 1. Upon viewing the array, the witness identified photograph number two as being a photograph of the person who shot Dwayne Smith. Witness 1 signed the photo array, indicating that a photograph had been selected. The witness also indicated knowing the defendant from the neighborhood.
Upon an order of this court, the witnesses names were not disclosed at the hearing.
People's exhibit 1.
On October 17, 2007, at the 70th Precinct, Detective Stumpf showed a copy of the same array to witness number 2. Unable to make an identification upon an initial review of the photo array, this witness requested profile views of the suspects. To comply with this reasonable request, the arrest photographs, which contain full frontal and profile views, were employed. Detective Stumpf folded the sheet which contained the photographs in half to cover the pedigree information and placed them side by side in an array. Thus, the witness viewed a photo array of both the full frontal and profile views. Detective Stumpf photographed the folded sheets that he presented to the witness and saved the sheets themselves for use at this hearing. Upon viewing the reconstructed array, witness 2 then identified photograph number two as depicting the person involved in the shooting of Dwayne Smith. Witness 2 then signed the array.
People's exhibit 2 A B.
People's exhibit 3 A-F.
On January 9, 2008, the defendant was arrested, by Detective Davilla of the Kings County Warrants Squad, brought to the 70th Precinct and placed in a holding cell. At approxmately 11:00 A.M., Detective Stumpf read the defendant his Miranda warnings from a pre-printed form. The defendant stated he understood his rights, waived them and was willing to speak to the police without an atorney. The defendant then stated that he didn't know anything about the crime. Subsequently, the defendant made a written statement, which he signed. Afterwards, the defendant was placed in a holdng cell, awaiting the organization of a lineup.
Miranda v Arizona, 384 US 436.
People's exhibit 5.
People's exhibit 6.
At 8:35 P.M., witness number 1 viewed the lineup that was eventually constituted and identified the defendant, who was seated in position number 4, the position he chose, as the person who shot Dwayne Smith. Three additional witnesses viewed the lineup, including witness number 2, but none could make a positive identification. The lineups concluded at approximately 9:30 P.M. After the lineup, Detective Stumpf informed the defendant that he had been identified at the lineup and advised the defendant that he still had the right to speak with an attorney. Despite the detective's warnings, the defendant stated that he knew the victim and that the victim had a problem with another individual that was gang related. After denying any personal involvement in the shooting, the defendant was placed in a holding cell overnight.
People's exhibits 7A B.
At approximately 12 noon the next morning, the defendant, while in his holding cell, asked Detective Stumpf if he could speak with him. Detective Stumpf moved the defendant to a back office, advised him, again, that he still had all the same rights as he had previously been advised of. The defendant then gave an oral statement that not only placed him at the crime scene but had him firing a gun at the location. Defendant claimed that his shot did not kill the decedent, who had already fallen after defendant's friend had shot him. After making this oral statement, the defendant agreed to be interviewed on videotaped.
Approximately two hours later, Assistant District Attorney John Giannotti arrived at the 70th Precinct and began reviewing the prior statements of the witnesses involved in the case. At 2:16 P.M., he commenced a videotaped interview of the defendant. Mr. Giannotti read the defendant his Miranda warnings and the defendant yet again indicated that he understood and was waiving his rights. The defendant was then questioned for about thirty minutes on the video, claiming that although he was at the scene and had fired a weapon, that the deceased appeared to have a weapon and that the defendant had ordered his friend to shoot the decedent in self-defense. After the decedent was apparently shot to death, the defendant picked up his friend's weapon and fired a round in the direction of the decedent's friends, in order to provide the defendant with an opportunity to run away.
People's exhibit 8.
Conclusions of Law
The defendant raised various issues at the conclusion of the hearing: whether the photographic array and station house lineups were unnecessarily suggestive, and whether defendant's statements to Detective Stumpf and Assistant District Attorney Giannotti were taken in violation of his Miranda rights.
Wade
It is axiomatic that the purpose of a Wade hearing is to determine whether police conducted pre-trial identification procedures were unduly and impermissibly suggestive, so as to deny the defendant due process ( Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241). In this case, the defendant challenges the photographic array and lineup that was conducted.
PHOTO ARRAYS
"A photo array is unduly suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection ( People v Smiley , 49 AD3d 1299, lv denied 10 NY3d 870; People v Boria, 279 AD2d 585, 586, lv denied 96 NY2d 781; People v Robert, 184 AD2d 597, 598, lv denied 80 NY2d 929, 933; People v Cherry, 150 AD2d 475; People v Dubois, 140 AD2d 619,622, lv denied 72 NY2d 911).
This court has examined the computer generated photo array introduced into evidence as People's exhibit one and the reconstituted array introduced into evidence as People's exhibit two. The defendant's appearance and pose does not differ in any apparent manner from those of the other men in the photographs. All of the men, including the defendant, appear to be close in age and have similar hairstyles, skin tones and facial characteristics ( People v Howard, 50AD3d 823, lv denied 10 NY3d 935; Robert, 184 AD2d at 598). The various men depicted in the photo array were sufficiently similar in appearance so that the procedure was not rendered unduly suggestive ( Howard, 50 AD3d at 823; People v Ragunauth , 24 AD3d 472 , 472, lv denied 6 NY3d 779; People v Malphurs, 111 AD2d 266, 267-268, lv denied 66 NY2d 920). "The composition and presentation of the photo array were such that there was no reasonable possibility that the attention of the witness would be drawn to defendant as the suspect chosen by the police" ( People v Sylvester , 32 AD3d 1226 , 1227, lv denied 7 NY3d 929; People v Dean , 28 AD3d 1118 , lv denied 7 NY3d 787; see generally People v Chipp, 75 NY2d 327, 335-336, cert denied 498 US 833).Detective Stumpf took the extra step in composing a photo array that differed from the more traditional array only because the witness requested viewing the suspects' profiles. Detective Stumpf was permitted to alter the photo array in the manner requested by the witness, similar to the situation at a lineup when the eyewitness requests that the lineup fillers stand up, speak or perform some other task ( see People v Johnson, 306 AD2d 214, 215, lv denied 100 NY2d 621; People v Ramos, 136 AD2d 574, 575, lv denied 71 NY2d 972 [at victim's request, lineup participants stood and approached the glass]; People v LeCorps , 19 AD3d 216 , 216, lv denied 5 NY3d 807; People v Thomas, 223 AD2d 610-611, lv denied 88 NY2d 1025 [at victims' request, lineup participants display their teeth]).
In addition, the arrest photographs employed in this case show none of the traditional indicia that they are, in fact, arrest photographs. No height chart, nor identification numbers are displayed ( compare People v Ryan, 147 AD2d 508, 509 [height chart on photographs]; People v Watts, 130 AD2d 695, 696, lv denied 70 NY2d 718 [dates on five of the ten photographs]). The photos consist merely of a frontal and profile image on a neutral background.
LINEUPS
With respect to the lineups, the defendant contends that evidence of the lineup identification conducted in this case should be suppressed because it was unduly suggestive.
It is axiomatic that while participants in a lineup should share the same general physical characteristics as the suspect ( People v Kirby , 34 AD3d 695 , 695, lv denied 8 NY3d 598; People v Burns, 138 AD2d 614, 615, lv denied 71 NY2d 1024) "there is no requirement . . . that a defendant in a line-up be surrounded by people nearly identical in appearance" ( Chipp, 75 NY2d at 336; Matter of Raymond A., 178 AD2d 288, 289)( see also People v Hoehne, 203 AD2d 480, 481, lv denied 83 NY2d 967; People v Henderson, 170 AD2d 532, 533, lv denied 77 NY2d 995; People v Jackson, 151 AD2d 694, 694). After all, "[p]olice stations are not theatrical casting offices" ( United States v Lewis, 547 F2d 1030, 1035, cert denied 423 US 1111).
This Court has closely examined People's exhibit seven. All of the men were wearing similar casual clothing. Each was wearing a dark cap, to conceal the differences in hair styles and lengths ( Kirby, 34 AD3d at 695; People v Barnett, 277 AD2d 323, 324, lv denied 96 NY2d 756; People v Bradley, 268 AD2d 591, 592, lv denied 95 NY2d 832; People v Walker, 215 AD2d 606, 606, lv denied 86 NY2d 804; People v Meatley, 162 AD2d 721, 722, lv denied 76 NY2d 942 [requiring all lineup participants to wear baseball caps is a reasonable step to conceal a suspect's unique hairstyle]). Each of the participants appear to be similar to the defendant in terms of age, facial hair and skin coloring and each shared the same general facial features. Any height or weight disparities were eliminated by having each of the lineup participants seated and holding a large number over their chests during the lineups.
In People's exhibit 7A B, each of the men in the lineup are wearing similarly colored dark pullover shirts, dark caps and blue jeans. Although in the photograph, filler number 3 is not wearing a cap, Detective Stumpf testified that by the time the witness viewed the lineup, each of the men were wearing similar caps.
I find that the lineups constituted a fairly representative panel upon which a witness could make a reliable identification. Each of the defendants' physical characteristics were sufficiently similar to the other participants so as to negate any likelihood that the defendant would be singled out by the police for identification ( People v Jackson, 98 NY2d 555, 559; Chipp, 75 NY2d at 336; People v Bacchus , 50 AD3d 818 , lv denied 11 NY3d 785; People v Washington , 40 AD3d 1136 , 1137, lv denied 9 NY3d 883; People v Davis , 27 AD3d 761 , 761, lv denied 7 NY3d 847; People v Peterkin , 27 AD3d 666 , 667, lv denied 7 NY3d 793).
Additionally, the procedures utilized in conducting the lineup were not unduly suggestive ( People v Caban, 181 AD2d 787, 787, lv denied 80 NY2d 894). As further proof of the fairness of the lineup, three of the witnesses were unable to make any identification, including witness number 2, who had previously identified the defendant from a photo array.
Huntley
With respect to the oral, written and videotaped statements made by the defendant, his counsel contends they were not voluntarily and freely made. As in any case where the defense challenges the admission of a defendant's statement, the People must prove its voluntariness beyond a reasonable doubt ( People v Huntley, 15 NY2d 72, 78; People v Anderson, 42 NY2d 35, 38-39; People v Holland, 48 NY2d 861, 862). Since the police may not interrogate a person who is in custody without first giving that suspect his or her Miranda warnings ( Miranda v Arizona, 384 US 436, 479), if the defendant was subjected to custodial interrogation, the prosecutor's burden also includes the duty to prove, beyond a reasonable doubt, that the defendant was advised of his Miranda rights and that he knowingly and voluntarily waived those rights ( Miranda, 384 US at 471-472).
As stated in People v Williams ( 62 NY2d 285, 288-289):
To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made. . .[and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation. . . . An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process.
As the Court of Appeals stated in People v Sirno ( 76 NY2d 967, 968),
when a defendant indicates he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant . . . waived those rights." ( see also North Carolina v Butler, 441 US 369; People v Davis, 55 NY2d 731).
After reviewing all of the testimony in this case, I find that the defendant was sufficiently advised of his Miranda rights, that he knowingly and voluntarily waived his rights and that each of the statements he made was freely and voluntarily given.
An additional argument, raised by the defense, is that the twenty-four hour period between Detective Stumpf's initial reading to the defendant of his constitutional rights until the defendant's initial inculpatory statement, the following day, required that the Miranda warnings be re-administered.
Beginning in People v Glinsman ( 107 AD2d 710, lv denied 64 NY2d 889, cert denied 472 US 1021), the Second Department has wrestled with how much time can elapse before the police must re-administer Miranda warnings during subsequent questioning of suspects. In upholding a two-to-three hour period between the initial reading of the Miranda warnings and the suspect's inculpatory oral statement, made while being transported to the police precinct, the court held:
It is well settled that where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous.
( Glinsman, 107 AD2d at 710)( citations omitted)( emphasis added)( see also People v Dayton, ___ AD2d ___, 2009 NY Slip Op 07437 [2009]; People v Hasty , 25 AD3d 740, 741, lv denied 6 NY3d 834; People v Holland, 268 AD2d 536, 537, lv denied 95 NY2d 835).
Less than ten years after rendering Glinsman, the Second Department held that ten hours between the recitation of Miranda warnings and additional questioning did not require that the warnings be repeated ( People v Baker, 208 AD2d 758, lv denied 85 NY2d 905)( see also People v Gause , 38 AD3d 999 , 1000, lv denied 9 NY3d 865 [11 hour interval reasonable]; People v Tobias, 273 AD2d 925, 925, lv denied 95 NY2d 908 [8 hours reasonable]; People v Lee , 30 AD3d 760 , 762, lv denied 7 NY3d 850 [7 hours reasonable]; People v Thomas, 233 AD2d 347, 347, lv denied 89 NY2d 1102 [7 hours reasonable]; People v Carelli , 41 AD3d 1092 , 1093 [5 hours reasonable]; People v Kemp, 266 AD2d 887, 887, lv denied 94 NY2d 921 [4 hours reasonable]; People v Fontanez, 278 AD2d 933, 934, lv denied 96 NY2d 862 [4 hours reasonable]; People v Pierre, 300 AD2d 324, 324, lv denied 100 NY2d 597 [2 to 3 hours reasonable]; People v Jacobson , 60 AD3d 1326 , 1327, lv denied 12 NY3d 916 [forty-five minutes reasonable]).
In 2001, the Second Department held that while a twelve hour interval between warnings and questioning was not per se unreasonable, on the specific facts of the case before the court, twenty-four hours was unreasonable.
This is not to suggest that 12 hours is per se unreasonable, but merely to highlight the fact that under the circumstances of this case, the 24-hour gap betweenthe issuance of Miranda warnings to the defendant and his second interrogation was not a reasonable time. The defendant spent much of March 17, 1998, at the hospital being treated for injuries sustained in a car accident on the way to central booking and therefore, was not in a continuous custodial environment. Moreover, the second interrogation concerned a crime unrelated to that for which he was initially arrested.
( People v Zappulla, 282 AD2d 696, 696, lv denied 96 NY2d 909, cert denied 546 US 957).
In this case, there is no intervening act, such as medical attention, to interrupt defendant's continuous period of custody, nor is there any allegation that the police questioned the defendant on another subject.
Recently, in People v Petronio ( 34 AD3d 602 , lv denied 8 NY3d 948), the same appellate court upheld a period of twenty-five hours between warnings and questioning.
Contrary to the defendant's contention, his second written confession, made 25 hours after the administration of Miranda warnings . . . was not per se involuntary. The court generally must look to the totality of the circumstances to determine the voluntariness of an inculpatory statement . . . Where, as here, a person in police custody was issued Miranda warnings and waived those rights voluntarily and intelligently, "it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody remains continuous" ( People v Glinsman, 107 AD2d 710 . . .). The factors to be examined in determining the totality of the circumstances surrounding a defendant's confession include the "duration and conditions of detention, the attitude of the police toward the defendant, and the age, physical state and mental state of the defendant"( People v Baker, 208 AD2d 758, 759 . . .).
Here, during his continuous and uninterrupted detention, the defendant waived his Miranda rights and confessed to killing the victim. The defendant then proceeded over the ensuing hours to spin a series of differing tales describing the manner of the killing and disposal of the body . . . Under these circumstances, the passage of a total of 25 hours from the time the police administered Miranda to the time of the defendant's final statement was not unreasonable.
( Petronio, 34 AD2d at 604)( some original citations omitted)( emphasis added)( see also People v Bridges , 63 AD3d 752 , 752; People v Cooper , 59 AD3d 1052 , 1054, lv denied 12 NY3d 852).
Under the totality of the circumstances, I find all of the defendant's statements were freely and voluntarily made. The defendant was in continuous custody from the time he was arrested until his final oral, pre-videotaped statement. The defendant was never questioned about any other incidents, was treated with respect and was continually warned that the Miranda warnings were still in effect.
Notwithstanding my ruling regarding the admissibility of the 12 noon statement, I also find that the defendant's videotaped statements, made to Assistant District Attorney Giannotti, were sufficiently attenuated from his previous day's statements to Detective Stumpf, as there was a definite and pronounced break in the questioning and in the interrogator ( People v Paulman , 5 NY3d 122 , 130; People v Foddrell , 65 AD3d 1375 , 1376; People v Sepulveda , 52 AD3d 539 , 540, lv denied 11 NY3d 794; People v Vachet , 5 AD3d 700, 702, lv denied 3 NY3d 649).
Conclusion
Based on all of the facts and circumstances presented in this case, defendant's motions to suppress evidence are hereby denied.
This constitutes the decision, opinion and order of the court.