Summary
holding that trial court properly admitted witness's testimony on rebuttal to refute defendant's direct testimony
Summary of this case from Murray v. New YorkOpinion
Argued October 14, 1982
Decided November 16, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, RUSSELL R. LEGGETT, J.
Herald Price Fahringer and Paul J. Cambria for appellant.
Carl A. Vergari, District Attorney ( Anthony Joseph Servino, Gerald D. Reilly and Richard E. Weill of counsel), for respondent.
Defendant, Jean Harris, was convicted, following a jury trial, of murder in the second degree and criminal possession of a weapon in the second and third degrees. This appeal presents for our consideration several purported errors occurring during the course of that trial, which defendant urges mandate reversal of the judgment of conviction. Inasmuch as our resolution of these issues leads us to the conclusion that reversible error was not committed, there should be an affirmance.
Defendant's trial for murder arose out of the shooting death of Dr. Herman Tarnower in his home on March 10, 1980. The People's case proceeded on the theory that Mrs. Harris, who had been Dr. Tarnower's paramour and companion for nearly 14 years, went to his home on the evening of the shooting and, acting out of jealous rage over the doctor's relationship with a younger woman, deliberately shot and killed him. One of the prosecution's witnesses, Dr. Tarnower's house manager, testified to the difficulties that had resulted from the doctor's relationships with the two women. Mrs. Harris's oral statements, testified to by the police officers who were investigating the shooting, were also relied upon as evidence of her motivation in going to the Tarnower estate on the evening of the shooting. The prosecution also utilized the so-called "Scarsdale letter", written by Mrs. Harris to the doctor over the weekend prior to his death, as strong evidence of Mrs. Harris's state of mind. In this letter, which contained several unflattering references to the younger woman in Dr. Tarnower's life, Mrs. Harris described her feelings of anguish and rejection over the doctor's apparent preference for this younger woman.
The defense theory was that Mrs. Harris, physically agitated by the lack of medication she had been taking for some time and suffering from recent failures and disappointments in her professional life, had determined that she wanted to end her life. Intending to see Dr. Tarnower once more before she died, Mrs. Harris drove to his home on March 10, hoping only to speak with him for a few moments. She entered the doctor's home and went into his bedroom, where she found him sleeping. Mrs. Harris was unable to rouse the doctor in order to have a conversation with him. Apparently upset by his lack of responsiveness and the presence of the belongings of the other woman in the bathroom, Mrs. Harris decided to kill herself there in the doctor's bedroom. According to Mrs. Harris, as she attempted to carry out her desire, the doctor, who had by now awakened, tried to prevent her from shooting herself. Several struggles ensued, during which Mrs. Harris's gun discharged, shooting Dr. Tarnower and inflicting four gunshot wounds from which he died. Evidence concerning Mrs. Harris's version of these events and her state of mind on the night of the shooting and previously thereto was presented largely through the testimony of Mrs. Harris herself. The defense also relied upon a will and certain letters, written by Mrs. Harris just prior to her departure for the Tarnower estate on March 10, to demonstrate her belief that she would never return to her home, because she intended to end her life. In addition, the defense offered a number of witnesses who testified that Mrs. Harris had indeed been distraught over recent events occurring in connection with her position as headmistress of the Madeira School.
Thus, the major and, indeed, critical issue at trial was whether, as the prosecution contended, defendant had deliberately shot Dr. Tarnower, intending to kill him, or, as the defense urged, the shooting had been accidental. This question was resolved by the jury in favor of the prosecution, and the legal sufficiency of the evidence upon which the verdict was based is not challenged on this appeal. Defendant claims, however, that numerous errors infected both pretrial proceedings and the trial itself, which operated to deprive her of a fair trial. We deal with these contentions separately below and engage in further discussion of the evidence in this case only insofar as it relates to the specific issues raised by defendant.
I
On the night of her arrest at the Tarnower residence, defendant made a statement over the telephone to her attorney. She contends that the introduction into evidence of that statement, testified to by a police officer who overheard it, violated her right to counsel under the Constitution of this State. It appears that Mrs. Harris, having been read her Miranda rights several times, having waived those rights and made statements to the police officers who were investigating the shooting, was thereafter asked if she would like to make a telephone call. Mrs. Harris responded that she would like to call a lawyer friend. After an attempt to make this call at a nearby telephone was unsuccessful, one of the officers, Lieutenant Flick, went into the house manager's bedroom to place the call for Mrs. Harris. When the lieutenant reached Mrs. Harris's party, he left the bedroom to so inform her. Officer Tamilio, at Lieutenant Flick's request, assisted Mrs. Harris to the bedroom. When they entered the room, the house manager's husband was already there, standing a few feet from the telephone. Immediately upon picking up the telephone, Mrs. Harris made the statement: "Oh, my God, I think I've killed Hy". Its admission into evidence is now challenged.
It is clear that, at the time Mrs. Harris made this statement, her right to counsel had attached by virtue of her request to speak with an attorney ( People v Cunningham, 49 N.Y.2d 203). Once the right to counsel had been invoked, no further questioning of Mrs. Harris would have been permissible, unless she had affirmatively waived her rights in the presence of her attorney ( People v Rogers, 48 N.Y.2d 167; People v Hobson, 39 N.Y.2d 479). Notwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously. In order for such statements to be characterized as spontaneous, it must "be shown that they were in no way the product of an `interrogation environment', the result of `express questioning or its functional equivalent'" ( People v Stoesser, 53 N.Y.2d 648, 650).
On the record before us, it is clear that no questioning of Mrs. Harris occurred after she invoked her right to counsel. The statement was neither induced, provoked nor encouraged by the actions of the police officers (see People v Rivers, 56 N.Y.2d 476), who had been entirely solicitous of Mrs. Harris's request to speak with a lawyer and had scrupulously honored her rights in this regard (cf. People v Grimaldi, 52 N.Y.2d 611). There is nothing in the record to indicate that Officer Tamilio endeavored, by subtle maneuvering or otherwise, to overhear Mrs. Harris's conversation with her attorney. Indeed, the record reflects that this officer, having assisted Mrs. Harris to the telephone, was backing out of the room when he inadvertently overheard the statement. It appears, therefore, that the officer had no opportunity to remove himself from earshot before Mrs. Harris made the damaging statement. Thus, we are not presented with a situation in which the police have failed to respect a defendant's right to consult privately with an attorney. Under the circumstances of this case, we conclude that no violation of defendant's right to counsel occurred.
Although we hold today that a statement properly characterized as spontaneous is no less so simply because it was made to an attorney, a further aspect of the admissibility of such statements should be considered. Given that the communication received in evidence was made to an attorney, the attorney-client privilege is implicated, in addition to the right to counsel. This privilege protects those communications made by a defendant to an attorney that are intended to be confidential ( People v Buchanan, 145 N.Y. 1; Baumann v Steingester, 213 N.Y. 328). It cannot be said, on the facts of this case, that Mrs. Harris, in speaking over the telephone to a lawyer in the known presence of both a police officer and the house manager's husband, intended this communication to be confidential. Generally, communications made in the presence of third parties, whose presence is known to the defendant, are not privileged from disclosure (see Richardson, Evidence [10th ed], § 413; 8 Wigmore, Evidence [McNaughton rev], § 2311). We see no reason to depart from this general rule simply because one of those parties present was a police officer, who, as has been noted, did nothing to purposely overhear the conversation or conceal his presence from defendant. Thus, we conclude that defendant's attorney-client privilege was not violated by the officer's testimony regarding this communication and that the testimony was properly admitted by the trial court.
Thus, this case does not present a situation in which it is claimed that defendant, through actions occurring subsequent to the confidential communication, has waived the attorney-client privilege ( People v Lynch, 23 N.Y.2d 262, 271). Rather, in this case, defendant's choice to speak to an attorney in the presence of third parties effectively prevented the privilege from attaching.
We recognize that the questions of whether defendant's right to counsel or attorney-client privilege have been violated may involve very similar factual inquiries, because the actions and purpose of the police are relevant to both questions.
II
The next issue to be considered is whether defendant was denied a fair trial by the prosecution's use of certain evidence in rebuttal. On direct examination, Mrs. Harris testified that, on the morning of March 10, she called Dr. Tarnower at his office in the Scarsdale Medical Center from her private telephone. Mrs. Harris stated that she and the doctor spoke of a number of things, and the doctor invited her to spend an upcoming weekend with him. On cross-examination, Mrs. Harris strenuously denied that, during the conversation, the doctor told her that she had lied and cheated, that she was going to inherit $240,000 or that he wanted her to stop bothering him. The prosecution then offered in rebuttal the testimony of a patient of Dr. Tarnower's who had been in an examining room with the doctor on the morning of March 10, when a telephone call was put through. The doctor answered the telephone in the examining room, but left the room to complete the conversation without severing the connection to the examining room. The patient overheard parts of the ensuing conversation, and although the voices were muffled and indistinct, she heard the doctor make the following statements: "God damn it, Jean, I want you to stop bothering me"; "You've lied and you've cheated"; "Well, you're going to inherit $240,000". We agree with the Appellate Division that this evidence was proper rebuttal.
The prosecution, of course, had the burden of establishing that Mrs. Harris intended to kill Dr. Tarnower. To this end, evidence was introduced in an attempt to establish that Mrs. Harris was in a jealous rage over the doctor's relationship with another woman. Mrs. Harris sought to controvert this theory of her state of mind by offering evidence that she acted solely out of her desire to end her own life and not out of any intent to harm the doctor, whose need for other women she had come to understand and accept. Mrs. Harris's direct testimony regarding the telephone conversation she had with the doctor on the morning of the shooting tended to confirm her view that all was well in their relationship.
It was proper, thereafter, for the prosecution to attempt to rebut Mrs. Harris's version of the nature of that relationship by introducing evidence concerning statements made by the doctor during the telephone call, which had been denied by Mrs. Harris. The rules concerning the proper scope of rebuttal evidence are clear. The party holding the affirmative of an issue must present all evidence concerning it before he closes his case. Thereafter, that party may introduce evidence in rebuttal only. "Rebutting evidence in such cases means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove" ( Marshall v Davies, 78 N.Y. 414, 420; see People v Bonier, 189 N.Y. 108, 121). In the present case, the prosecution offered the testimony of Dr. Tarnower's patient not to establish an element of its case-in-chief (i.e., intent to kill), but merely to contradict Mrs. Harris's testimony and to disprove the alternate state of mind offered to explain her actions. That being the case, the evidence was properly received in rebuttal even if it could have been offered on direct ( Ankersmit v Tuch, 114 N.Y. 51; see 6 Wigmore, Evidence [Chadbourn rev], § 1873, pp 678-679). As we said in Ankersmit (114 N.Y.; at p 55): "It is doubtless true that the evidence was competent and could have been introduced by the plaintiffs as a part of their affirmative case for the purpose of showing an intent to cheat and defraud, and that their neglect to introduce it at that time deprives them of the right to make use of it as affirmative evidence. But a party has the right to impeach or discredit the testimony of an opponent, and such evidence is always competent. He may contradict the testimony of a witness as to any matters upon which he has been called to give evidence in chief, provided it is not collateral to the issue".
Under some circumstances, the trial court has discretion to allow subsequent evidence which is not strictly rebuttal evidence. This point is discussed infra.
In any event, even if the evidence were not technically of a rebuttal nature, we believe that the trial court, in allowing its introduction, properly exercised the discretion afforded by CPL 260.30 (subd 7). This statute provides that the court may permit either party, in the interest of justice, to offer evidence which was more properly a part of the direct case. Defense counsel and the prosecutor engaged in extensive discussion with the Trial Judge concerning the admissibility of the patient's testimony on the People's direct case. Although the prosecution had some evidence in its possession indicating that the person making the telephone call overheard by the patient was Mrs. Harris, it nevertheless believed that it could not lay a proper foundation for the receipt of this testimony in evidence, particularly given the fact that the patient had never heard Mrs. Harris's voice before and thus could not identify it (cf. People v Lynes, 49 N.Y.2d 286). Once Mrs. Harris testified that she had indeed made this call, however, the previous authentication problem was obviated. Considering the difficulties faced by the offer of such proof on the People's direct case and the subsequent testimony of Mrs. Harris which provided the appropriate foundation for the People's proof, we believe that the trial court could properly exercise its discretion to allow the People to introduce such evidence as rebuttal.
III
On the eve of pretrial hearings, defendant requested, by oral motion, that the press be excluded from attendance at preliminary hearings. There is no doubt that substantial publicity surrounded the developments in this case concerning Dr. Tarnower's death and defendant's impending prosecution. Nevertheless, the trial court refused to close the pretrial proceedings, finding that the statements which were the subject matter of the suppression hearing had been known to the public for months and that defense counsel himself had been listed as the source of some of the commentary on the case. The court, considering both the defendant's right to a fair trial and the right of the press and the public to attend criminal proceedings, concluded that it had not been shown that closure of the suppression hearings was necessary to ensure that an impartial jury would be impaneled.
Matter of Gannett Co. v De Pasquale ( 43 N.Y.2d 370, affd 443 U.S. 368) is the first in a recent line of cases dealing with the right of access by the press and public to criminal proceedings. In Gannett, this court held that where press commentary on pretrial suppression hearings would threaten the impaneling of an impartial jury, by making available to the public the details of evidence sought to be suppressed as tainted by illegality, such hearings are presumptively to be closed to the public (43 N.Y.2d, at p 380). Although the United States Supreme Court's affirmance in Gannett was based upon its view that the Sixth Amendment guarantee of a public trial is personal to the accused and does not afford the press and public a separate right of access to pretrial proceedings (443 US, at pp 387-391), this court subsequently indicated that the concept of a public trial is not so narrowly viewed in this State ( Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 437). In addition to discussing the factors which must be considered in determining whether the public right to attend pretrial proceedings outweighs the defendant's right to a fair trial free of the potentially prejudicial impact of publicity concerning evidence subject to possible suppression, these cases laid down the procedural framework within which the possibility of closure of pretrial proceedings must be assessed.
The Supreme Court found it unnecessary to determine whether such a right of access to pretrial proceedings is guaranteed the press and public by virtue of the First Amendment. The court held that, assuming such a right to exist, it was given appropriate deference by the trial court in that case ( Gannett Co. v De Pasquale, supra, at pp 392-393), inasmuch as the closure decision was based "`on an assessment of the competing societal interests involved'" ( id., at p 393). In other words, any right of access on the part of the press was outweighed by the defendants' right to a fair trial.
The Supreme Court has since determined that the right of the public to attend criminal trials is implicit in the guarantees of the First Amendment ( Richmond Newspapers v Virginia, 448 U.S. 555; see, also, Globe Newspaper Co. v Superior Ct. for County of Norfolk, 457 US ___, 102 S Ct 2613), but it has not yet reached the question of whether that right extends also to pretrial proceedings (see Richmond Newspapers v Virginia, supra, at p 599 [STEWART, J., concurring]).
It must be emphasized, however, that in these cases, we dealt with demands by the press to gain access to pretrial proceedings. The issue of whether such access could be denied was decided in the context of a closure order granted on the request of defendant, without opposition by the prosecution. In contrast, the present case involves the denial of a motion to close the pretrial proceedings, which had been opposed by the prosecutor as well as the press. Thus, the posture of this case differs in an important respect from that in Gannett and Westchester Rockland Newspapers, for here it is not the press asserting that a pretrial hearing should not have been closed; rather, it is the defendant who argues that the failure to close the pretrial hearing resulted in the denial of a fair trial.
Where this latter claim is asserted, it is not sufficient to demonstrate that a closure order may have been warranted and would have withstood an attack by the press. The grant of a closure order is premised upon the belief that defendant might be denied a fair trial by the impact on potential veniremen of widespread publicity concerning evidence whose legality and admissibility at trial have been challenged. In such a case, the right of the press and public to attend the proceeding is deemed outweighed by the defendant's right to a fair trial. However, where the court has refused to close the pretrial hearings, even though closure may have been proper, and the substance of challenged evidence is publicized to defendant's claimed prejudice, the focus of the inquiry changes. Under these circumstances, we are concerned, not with balancing the conflicting rights of the press and the defendant, but with the question of whether defendant has in fact been denied a fair trial. Accordingly, to make out such a fair trial claim, it is incumbent upon the defendant to demonstrate more than the potential for prejudice that is sufficient to justify closure; rather, it must appear that prejudice to the defendant actually resulted from the failure to close the proceeding.
In the present case, it is clear that no such prejudice has been demonstrated. As the hearing Judge noted, the details of the statements which were the subject of the suppression hearing were already known to the public. Closure of the hearing would have accomplished little in terms of attempting to shield potential veniremen from press commentary on this evidence. Moreover, it is certainly relevant at this juncture to note that the statements were not suppressed as a result of the hearing. The difficult problem that occurs when suppressed evidence is nevertheless made available to the public through the press was thus not presented in this case, because the challenged statements were deemed admissible at trial. Inasmuch as the record in this case contains no indication that defendant was in fact prejudiced by denial of her closure motion, there is no basis upon which to conclude that defendant was denied a fair trial with regard to this issue.
IV
Defendant argues that she was denied a fair trial before an impartial jury when the trial court refused to allow defense counsel to exercise a peremptory challenge to a sworn juror, or, in the alternative, to excuse that juror for cause, on the basis of information acquired after the juror was sworn. Upon the initial examination, this juror revealed that her daughter had been arrested about a year earlier in Westchester County, but that she did not know the eventual disposition of the case. The juror thought that the Grand Jury had not returned an indictment against her daughter because there was insufficient evidence. The juror was accepted by both sides and sworn. Several days later, an Assistant District Attorney who was involved in the prosecution discovered that he had handled the case referred to by the juror and that he had been instrumental in having the indictment against the juror's daughter dismissed in the interest of justice. When the assistant prosecutor disclosed this information to the trial court, defense counsel asked that the juror be excused for cause, or that he be allowed to exercise a peremptory challenge. The trial court denied both requests.
The exercise of peremptory challenges is governed by CPL 270.15. Pursuant to this statute, after each side has been given an opportunity to challenge a juror for cause, the court must permit peremptory challenges, with the People being required to exercise such challenges before the defendant. Subdivision 4 of this statute specifically states the circumstances under which a juror, once sworn, may be challenged for cause. Where a challenge for cause is made upon a ground not known to the challenging party before the juror was sworn, the court may allow the challenge prior to the time that the first witness is sworn at the trial. This express provision for the exercise of a challenge for cause after a juror is sworn must be taken as a legislative direction that any other type of challenge to a sworn juror is impermissible (see People v Hughes, 137 N.Y. 29; People v Carpenter, 102 N.Y. 238; People v Chmarzewski, 51 A.D.2d 554; People v Mancuso, 26 A.D.2d 292, mod 22 N.Y.2d 679). This interpretation of the statute is entirely consistent with the perceived need to place appropriate limitations on one of the most time-consuming aspects of criminal jury trials (Bellacosa, Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 270.15, 1972-1981 Supplementary Pamphlet, p 413), while still allowing challenges to sworn jurors where good cause to excuse the juror is demonstrated.
To the extent that People v West ( 38 A.D.2d 548, affd no opn 32 N.Y.2d 944) might suggest a contrary result, it is overruled. Although the trial court in West appears to have allowed a peremptory challenge to a sworn juror, we note that it was argued on appeal that the juror should have been excused for cause. Our affirmance without opinion should not be interpreted as an adoption of the lower courts' reasoning (see Rogers v Decker, 131 N.Y. 490, 493; Matter of Sentry Ins. Co. [ Amsel], 36 N.Y.2d 291, 295).
It was nevertheless within the trial court's power, as noted, to entertain the request that the sworn juror be excused for cause. The defense relied upon CPL 270.20 (subd 1, par [c]) as the ground for its challenge. This objection to a juror is based upon, inter alia, the existence of such a relationship between the juror and counsel for the People as is likely to preclude the juror from rendering an impartial verdict. Here, defense counsel knew that the juror's daughter had been arrested in Westchester County and that although she did not know the precise disposition of the case, she knew that the result was favorable to her daughter. With this knowledge, defense counsel accepted the juror. The information acquired after the juror was sworn, which is all that may be considered in determining defendant's challenge for cause (see CPL 270.15, subd 4), was that an Assistant District Attorney involved in the present case had handled the case against the juror's daughter and had himself sought dismissal of the indictment therein. There is no indication in the record that the juror knew this Assistant District Attorney or that he knew the juror. In addition, it does not appear that the juror knew that anyone associated with the District Attorney's office, least of all this particular trial assistant, had been responsible for the dismissal of the indictment. Nor did defense counsel seek an opportunity to further explore these possibilities.
On this record, it was not error to deny the challenge for cause. Defendant has not demonstrated the existence of such a relationship between the juror and the Assistant District Attorney as rendered the juror unsuitable for service (see, e.g., People v Provenzano, 50 N.Y.2d 420).
We have examined defendant's remaining allegations of error concerning prosecutorial misconduct, error in the court's charge and refusal of a discovery request. Those of defendant's objections which are preserved for our review are lacking in merit. Accordingly, defendant's conviction should be affirmed.
I am not prepared to agree that the trial of Jean Harris was error-free. But, as we and other courts have had occasion to realistically remark in the past, "in this imperfect world, the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal" ( People v Rivera, 39 N.Y.2d 519, 523). In deciding whether the trial in the present case was fair, one of the rulings the majority finds acceptable gives me more than pause.
The troublesome point is the admission into evidence of the statement overheard by the police officer, even if inadvertently, during the defendant's telephone consultation with the lawyer with whom she originally spoke while she was in custody on the night of the shooting. The crucial words at issue, "Oh, my God, I think I've killed Hy", were uttered after the opportunity for such communication had been arranged by the police when Mrs. Harris, in response to their query, indicated that she wished to speak to her attorney. Since, in making the arrangements, the police were charged with the obligation to take reasonable precautions to ensure privacy, I cannot agree with the majority that the attorney-client privilege had not attached or that the statement the police overheard was one properly characterized as spontaneous.
For the reasons I discuss later, on the relevant facts, whether the overhearing was inadvertent is besides the point. In any event, close inspection of the record indicates that, though the officer, on direct, at first did testify, as the majority states, that he was backing out of the room at the time, he did not go so far as to say that he ever left the room during the conversation. Rather, on cross-examination, he admitted that he never made "any attempt of any kind to get out of earshot and give her privacy to speak with her attorney".
The officer who sent the overhearing officer into the room unquestionably had direct knowledge of the fact that an attorney-client consultation was about to take place since he had actually put through the telephone call. In any event, a defendant is not to be "penalized because of any inadequacy of internal communication within the law enforcement establishment" ( People v McLaurin, 38 N.Y.2d 123, 126 [GABRIELLI, J.]; cf. Santobello v New York, 404 U.S. 257, 259-260).
Consider the charged atmosphere which prevailed at the time. It takes no imagination to sense Mrs. Harris's emotionally distraught state. After giving the police her version of how she had come to shoot Dr. Tarnower, she had fainted upon the sight of his body being removed to the hospital. The effort to reach the lawyer sequentially followed immediately upon this episode. One officer used the telephone in the housekeeper's bedroom to do so, whereupon a second officer, having been instructed to assist Mrs. Harris into the room, noticed that she walked so unsteadily that, as he later was to testify, she "looked * * * like she couldn't make it under her own power". At the conclusion of the conversation, he found it necessary to lift her out of her chair and help her out of the room. At the suppression hearing, he candidly advised the court that, though aware that she was talking to a lawyer, he remained so closely within earshot of the conversation during its entire 3 to 5 minute duration that, at its termination, he was able to get to her side quickly enough to take the receiver from her.
It is our well-settled law that, for a statement to be dubbed "spontaneous" within the meaning of that narrow exception to the rules protective of the right to counsel, it must be one "`made without apparent external cause, i.e., self-generating'" ( People v Lanahan, 55 N.Y.2d 711, 713; People v Stoesser, 53 N.Y.2d 648, 650). Spelled out more sensitively, it may not have been "the result of inducement, provocation, encouragement or acquiescence" by the police ( People v Rivers, 56 N.Y.2d 476, 479; People v Lanahan, supra; People v Stoesser, supra; People v Maerling, 46 N.Y.2d 289, 302-303).
Applied aptly in a privilege case at nisi prius, the court there put it as follows: "When [a] defendant seeks to communicate with a person and that communication would ordinarily be deemed privileged, those who hold him in custody should either (1) afford him the right to make the communication in conditions of privacy or (2) warn him that if his utterances are overheard, they may be testified to by the person overhearing them, or (3) bar all hearers from testifying to confidential communications overheard by them when conditions of privacy are not accorded and appropriate additional warnings are not given" ( People v Brown, 82 Misc.2d 115, 120-121 [GREENFIELD, J.]).
Measured either way, it seems impossible to escape the conclusion that Mrs. Harris's admission was, at least in part, the product of "acquiescence" in, if not exploitation of, her obvious vulnerability. A lay person, presumably without sophistication in the subtleties surrounding constitutional safeguards of the right to counsel, she already had unburdened herself to the police, and hence was unlikely to be chary of doing so again (see People v Tanner, 30 N.Y.2d 102, 106). On the other hand, the police, trained in such matters and cognizant of Mrs. Harris's state of mind as well as her previous willingness to talk with them, should have been well aware of the likelihood that she would make further admissions to her lawyer. In any event, they were obliged to "scrupulously honor" her right to counsel by ensuring that she could talk to her lawyer in confidence (see People v Grant, 45 N.Y.2d 366, 375-376). Yet, not even the simple expedient of telling Mrs. Harris not to begin her conversation until he and the house manager's husband had left the room was essayed. I therefore cannot see how we can fail to agree with the Appellate Division that the admission of the "Oh, my God" statement violated the defendant's right to counsel (see People v Grimaldi, 52 N.Y.2d 611, 617).
This said, it also cannot be gainsaid that the admissibility of Mrs. Harris's earlier statements to the police that she had "shot" Dr. Tarnower was not disputed. Nor can it be blinked that, on whatever weight they carried on the issue of intent, there was no meaningful difference between the earlier ones and the one now challenged. In the first statements, she acknowledged her act; in her last admission, she simply added her awareness of the victim's condition at that time. The difference, substitution of the word "killed" for "shot", viewed objectively, essentially reflected little more than the undisputed deterioration in Dr. Tarnower's condition between the time when she believed he had only been wounded and the time when it appeared that the wounds might be fatal.
Furthermore, the flawed statement did not bear on the vital inculpatory or exculpatory nature of the circumstances in which the shooting took place, the matter on which the outcome of this long trial, which heard 92 witnesses over a 14-week period, finally would have to turn. Indeed, neither "shot" nor "killed", in and by itself, describes a criminal act per se.
Nevertheless, defendant argues that the last statement, since it alone included the word "killed", should be considered more prejudicial than the others. This, however, is far from persuasive. For defendant's use of term "killed" was neutralized by her prefatory language, "Oh, my God, I think", which surely could be seen as evoking connotations of dismay and surprise rather than criminal intent.
But, counters the defense, the prosecutor's stress on the word "killed" rather than "shot" added to the alleged prejudice when, in the course of his summation, he discussed the statements. To this the answer is simple. That the prosecutor chose to focus his perfectly proper adversarial rhetoric on the statement overheard by the police officer rather than on the ones Mrs. Harris had volunteered previously, was, in context, of limited moment. As any good trial lawyer, or any good public speaker, will understand, had the flawed statement featuring the word "killed" not been available, he could have resorted to the earlier ones which had employed the word "shot" to make the same arguments, with the same fervor and, no doubt, to like effect.
Regretfully, therefore — because the vitality of the Bill of Rights depends, above all, on the right to counsel — I am compelled, on the record of this case taken as a whole, to conclude that the error does not justify reversal. For, against the background of the prior untainted statements Mrs. Harris already had made on her own, the erroneous admission of the one she made to the lawyer was harmless beyond a reasonable doubt ( People v Schaeffer, 56 N.Y.2d 448, 454). Moreover, to the extent that the violation of defendant's right to counsel also trespassed upon her attorney-client privilege, the same conclusion is warranted (see People v Thomas, 50 N.Y.2d 467, 475-477 [my concurrence]; cf. People v Glenn, 52 N.Y.2d 880).
In Schaeffer, addressing the standard for harmlessness in cases where the defendant, as did Mrs. Harris, had made admissible as well as inadmissible statements, we held that, in accordance with elementary logic, "reviewing courts should take into account the degree to which tainted statements are duplicative of untainted ones and, to the extent they are not, the nature and the extent of the differences * * * [T]he more they differ the greater the possibility that the additional matter supplied by the tainted one was a sine qua non of the production of the verdict" (56 N.Y.2d, at p 455; see, also, People v Sanders, 56 N.Y.2d 51, 66-67). Here, on analysis, as I have indicated, the difference was one in form, not in fact.
I, too, therefore, must cast my vote to affirm.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER and MEYER concur with Judge GABRIELLI; Judge FUCHSBERG concurs in a separate opinion.
Order affirmed.