Opinion
4615-2006.
Decided November 17, 2009.
Robert T. Johnson, District Attorney, Bronx County (Alexandra A. Militano, Of Counsel).
Lewis E. Alperin, Alperin Hufjoy, Mount Vernon, New York (Attorney for defendant).
The defendant Lawrence Johnson is charged with murder in the second degree in the death of his 3-month-old daughter. The defense has moved to suppress a series of statements made by the defendant to the police. Resolution of this motion requires an analysis of police conduct and custodial interrogation at the outer edge of People v. Yukl, 25 NY2d 585, 589 (1969), cert. denied, 400 U.S. 851 (1970), and its progeny. As set forth herein, the motion to suppress is granted in part and denied in part.
Background
By an indictment filed on December 11, 2006, the defendant was charged with second-degree murder (two counts), manslaughter in the first degree (two counts) and endangering the welfare of a child. On March 7, 2007, defendant filed an omnibus motion to which the People responded on March 15, 2007. In a decision filed May 2, 2007, Justice Moore ordered that a Huntley hearing be conducted.
Such a hearing was conducted on September 23, 2009 and September 29, 2009. Three witnesses testified for the People — Detectives Iris Bresciani and James Mc Sloy of the Bronx Homicide Task Force and Detective Angel Maysonet of the Joint Terrorist Task Force. I found the testimony of the detectives to be credible in most respects.
Findings of Fact
The facts are not in dispute.
On December 1, 2006, Detective Bresciani, then a detective in the 48th precinct, was assigned the investigation of the infant fatality of three-month-old Jayla Johnson who had died at Saint Barnabas Hospital. Without knowledge of the cause of death, Detective Bresciani proceeded to the hospital where she met defendant, the deceased's father, at the pediatric emergency room. The detective's purpose in speaking with defendant was "[t]o ascertain if there was any type of medical issue or problem with the child, to see if there was anything that would bring us to a conclusion as to why the baby died." (H 8).
Numerical references preceded by "H" are to the minutes from the suppression hearing.
Statement No. 1
Defendant (who was not a suspect at this time) stated that the baby was fed throughout the night, at some time in the middle of the night the mother woke up and noticed that the baby was not breathing. The mother began to scream, defendant entered the baby's room and performed CPR on the child while the mother called 911. (H 8). Other detectives interviewed the deceased's mother separately at the hospital.
Detective Maysonet took over the investigation on December 2, 2006. At 9:45 a.m., Police Officer Flavio telephoned Detective Maysonet from the medical examiner's officer and stated that the autopsy was completed and that the baby's death was ruled a homicide. Detective Maysonet thereupon gathered his "team" and headed out to 924 East 181st Street, the location where the infant had lived in order to speak with the parents. The detective and about six other officers arrived there at approximately 10:30 a.m. The detectives proceeded to apartment 3D and knocked on the door. Defendant, who was home with another child, answered the door and allowed the officers to enter the apartment. Detective Maysonet asked defendant if he and his wife, Lisandra Garcia, (who was not in the apartment at that time) would accompany him to the precinct because the detective needed to speak to them about the death of their daughter. After about 30-45 minutes, defendant and his wife were transported separately to the 48th precinct. Defendant was not handcuffed at this time. At this point in time, defendant and his wife were ". . .both persons of interest." (H 78).
At the precinct, defendant's wife waited in the juvenile room, while defendant was taken to the interview room in the Detective Squad. The latter room has no windows. Detective Maysonet safeguarded his firearm in the desk of a colleague. Defendant was asked if he needed a bathroom and he declined. Later, defendant was asked if he wanted something to eat and he replied that he did not. At some point later that day, defendant was escorted to the bathroom.
After defendant was seated in the interview room, Detective Maysonet left the room and locked it from the outside. Detective James McSloy, from the Bronx Homicide Task Force was assigned the investigation and came to the 48th precinct to assist Detective Maysonet in his investigation. That day, Detective McSloy went to the Bronx County Medical Examiner's office and viewed parts of the autopsy. The detective learned from the medical examiner who conducted the autopsy, Dr. Pral, that the death was being ruled a homicide by a blunt force trauma to the head. Doctor Pral stated that several blows to the head were inflicted on the deceased within hours of her death.
According to Detective Maysonet, the door in the interview room was locked [b]ecause the interview room is in close proximity of our locker room and where people store their firearms if they're off duty. . . . Basically it was a safety issue . . ." (H 35)
Detective McSloy then went to the 48th precinct and arrived there at about 12:00 p.m. He spoke to Lisandra Garcia at about 12:25 p.m. in order to obtain information regarding her daughter's death. Ms. Garcia signed a written consent for the police to search her apartment. She wrote a statement regarding the what she knew about the death of her daughter. At some point thereafter, defendant gave consent to search his apartment.
Statement # 2
At about 1:15 p.m., Detective Maysonet began speaking with defendant (who was found to have a bench warrant in New Jersey for receiving stolen property) about the death of his daughter. Since the police had no evidence pointing to defendant as the person responsible for his daughter's death, defendant was not considered a suspect at his point and was not read his Miranda rights. Defendant was not told that he was under arrest; nor did defendant ever ask if he could leave the precinct during questioning. Detective Maysonet asked defendant to explain what had occurred in the days leading up to the death of his daughter. Defendant was not told that the medical examiner ruled that his child's death was ruled a homicide. Defendant was calm and cooperative as he answered the detective's questions.
Defendant said that the day of his daughter's death had been basically a normal day with his family. They had watched a movie, had dinner together and the baby was put to sleep. After the baby awoke, defendant and his wife fed her and the baby vomited on defendant. Defendant explained that if the baby has too much formula, she throws it up. They put the baby in the bassinet, defendant's wife went to sleep and defendant was in charge of taking care of the baby. He put the baby in the bassinet facing the Christmas lights which the baby appeared to like.
The baby fell asleep. Defendant was awoken the next morning by Lisandra screaming. He got up and noticed that the baby was cold. Defendant performed CPR on the baby while his wife called 911. The 911 operator gave her CPR directions which defendant performed until EMS showed up and took over. The EMS took the baby to the ambulance and rushed her to Saint Barnabas Hospital. Defendant and his wife followed the ambulance. At the hospital, a doctor informed them that the baby had passed away.
Statement No. 3
At the conclusion of defendant's narrative, Detective Maysonet asked if defendant would agree to write down what he had stated verbally and defendant stated he would. The two detectives left the room and when they returned ten minutes later, at about 2:15 p.m., defendant had made a written statement (People's Exhibit 1). Detective Maysonet asked defendant to write his name, address and date of birth on the bottom and then to sign his name. After defendant signed his name, Detectives Maysonet and McSloy signed their names to the statement.
After completing his written statement, defendant remained in the interview room while the detectives contacted the medical examiner's office to get details about the baby's injuries. The detectives also planned what follow-up questions they wanted to ask defendant.
Statement No. 4
At approximately 2:30 p.m., the detectives re-entered the interview room. At that point, Detective Maysonet advised defendant that his daughter's death had been ruled a homicide and that she died of a blunt force trauma to the head. After Detective McSloy explained to defendant what a blunt force trauma was, defendant was asked if he knew who had killed his daughter. Defendant responded that he did not.
Defendant stated that when he went to sleep that night, the doors, windows and fire escape window were closed and locked. Detective Maysonet asked defendant if someone could have sneaked into the apartment that night and defendant said no. Defendant stated that he and his wife were the only persons in the apartment besides the baby. At that point, Detective Maysonet asked defendant again if he knew who killed his daughter and defendant responded "No."
Statement No. 5
Detective Maysonet then asked defendant if there was any way defendant could explain why his daughter had forceful fractures. Defendant stated that the daughter's one-year-old sister, Janija, liked to strike the baby in the head with toys. Both detectives stated that this was not consistent with the daughter's injuries.
Statement No. 6
Defendant then stated on the previous Monday, he was feeding the baby when she slipped out of his hands and fell on the tile floor which could have possibly caused her injuries. Both detectives told defendant that a single fall was inconsistent with the medical examiner's report which found the daughter sustained four separate fractures. Defendant responded that when his daughter slipped out of hands, she hit the counter, then a drawer which was open, and then she hit the floor. Detective Maysonet stated that the revised story was still inconsistent with the injuries.
Statement No. 7
Defendant then stated that the previous Thursday, he placed his daughter on the bed with a bed railing while he was ironing. When defendant opened the bedroom door, the railing fell and hit the child on her head. Detective Maysonet told defendant that those injuries were inconsistent with the injuries found on his daughter. Detective Maysonet told defendant that they could test the railing to see if there was blood or traces of scalp or other evidence on the railing. At that point, defendant sunk in his chair, his shoulders scrunched up and his demeanor changed.
Then, at approximately 3:25 p.m., Detective Maysonet told defendant, ". . . if he knew who killed his daughter, he needed to tell me the truth" (H 56).
Statement No. 8
Defendant stated that the previous night, everything he had told Detective Maysonet was accurate up to the point when he put the child down to sleep. Defendant stated he walked out to use the bathroom and as he was walking back, he was thinking about a pending paternity lawsuit, about his wife finding out that she was sick, about his uncle who had recently died — this all weighed heavily on him as he sat at the edge of the bed. Defendant stated that he felt helpless and ". . . he looked down at Jayla and []struck her on the head three to five times." (H 57). He then rolled over and went to sleep. (H 57). Defendant stated that the rest of the story was true in that when he woke up his wife was screaming and he performed CPR and the baby was taken to the hospital.
At this point, Detective stopped the interview and advised defendant of his Miranda rights using a form. (People's Exh. 2). When Detective Maysonet read each right, he asked the defendant if he understood. The detective wrote down defendant's answer and after all the rights were read, defendant initialed each answer and signed the bottom of the form. Detective Maysonet wrote 3:33 p.m. on the form to indicate the time the form was signed by defendant.
The Miranda warnings on People's Exh. 2 are as follows:
1. You Have the right to remain silent and refuse to answer any questions.
2. Anything you do say may be used against you in a court of law.
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during any questioning now or in the future.
4. If you can not afford an attorney, one will be provided for you without cost.
5. If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one.
6. Now that I have advised you of your rights, are you willing to answer questions?
At the conclusion of reading the Miranda rights, Detective Maysonet asked defendant if he was willing to answer questions and defendant stated that he was. Detective Maysonet asked defendant to write down the story he had just told.
Statement 9
The two detectives left the room and defendant made a written statement (People's Exh.3) which repeated the story he had told just prior to receiving the Miranda warnings. After the statement was completed, Detective Maysonet asked defendant to sign the statement, which he did. The two detectives then signed the statement and wrote 3:55 p.m. on the statement to reflect the time the statement was completed.
Detective Maysonet asked defendant if he struck the baby with an open or closed fist. Defendant stated that he hit her with a closed fist. At that point, defendant was placed under arrest and the detectives telephoned the homicide Assistant District Attorney who was on duty.
Statement 10
Assistant District Attorney Leah Takantzas, along with a video technician, subsequently appeared at the precinct. A video statement was made by defendant at 5:35 p.m. (People's Exh. 4), after he was fully advised of his constitutional rights. Defendant stated that he understood each of the rights read by A.D.A. Takantzas After being asked by A.D.A. Takantzas, "Now that I have advised you of these rights, are you willing to take your opportunity to say whatever you like to us about whatever happened Thursday into Friday, December 1st?" defendant did not expressly agree to speak with A.D.A. Takantzas but he began to answer questions asked by her.
A.D.A. Takantzas gave the following warnings to defendant:
1. You have the right to remain silent and refuse to answer any questions. Do you understand that?
2. And, anything you do or say may be used against you in a court of law. Do you understand that?
3. You have the right to consult an attorney before speaking to the police or to me and to have an attorney present during any questioning now or in the future. Do you understand that?
4. And if you cannot afford an attorney, one will be provided to you without cost. Do you understand that?
5. And if you do not have an attorney available, you have the right to remain silent until you have the opportunity to consult with one. Do you understand that?
6. Okay. Now that I have advised you of these rights, are you willing to take your opportunity to say whatever you like to us about whatever happened Thursday into Friday, December 1st?
Conclusions of Law
Defendant moves to suppress all statements made by him prior to the administration of the Miranda warnings on the ground that they were the product of custodial interrogation. He moves to suppress the statements made after the Miranda warnings were administered on the ground that they were tainted by the illegally obtained statements.
Miranda warnings are required ". . . at the time a person is taken into custody or otherwise deprived of his freedom . . . " People v. Yukl, 25 NY2d at 588. To determine if a person was in custody, courts must evaluate ". . . not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v. Yukl, 25 NY2d at 589 (1969); People v. DeJesus, 32 AD3d 753 (1st Dept. 2006).
The relevant facts adduced at the suppression hearing regarding whether defendant was in custody at the time he was questioned by the police are as follows:
(i)On December 1, 2006, three-month old Jayla Johnson died at home;
(ii)Defendant is interviewed by a detective at the emergency room and makes an exculpatory statement.
(iii) On December 2, 2006, the medical examiner declares this a homicide via blunt force trauma. Detective Maysonet was assigned the investigation. He proceeded to the location where the infant had died and told defendant that the police needed to speak to the two adults (defendant and his wife) who lived in the apartment with the decedent. Defendant, un-handcuffed, agrees to be taken to the precinct. The officers wait in defendant's apartment for the wife to arrive.
(iv)Defendant and his wife are transported separately to the precinct. Defendant waited by himself in a locked interview room for more than two hours while the detectives spoke with his wife. Approximately two hours later, Detectives Maysonet and McSloy began to interview defendant by asking him if he had any knowledge of the circumstances of his daughter's death. Defendant offered the police an innocent version of the facts and the detectives had him write it down. The two detectives inform defendant that the baby's death has been ruled a homicide by blunt force trauma.
(v)Defendant proceeded to provide four separate scenarios for how the baby's injuries might have occurred and after each explanation, Detective Maysonet told defendant that his story was inconsistent with the injuries found on his daughter. After the fourth explanation, Detective Maysonet told defendant, ". . . if he knew how herinjuries were caused that he should tell me." (H 53). At this point, defendant told the detectives that he had struck the baby three times with a closed fist on the night of her death.
(vi)Immediately thereafter, Detective Maysonet read defendant a complete version of the Miranda warnings and defendant agreed to answer questions without an attorney. Defendant then wrote down what he had just told the detectives.
(vii) Defendant was in the interview room for about 5 hours during which he was escorted to the bathroom once.
(viii) Approximately 90 minutes later, A.D.A. Takantzas appeared in the precinct, re-read the Miranda warnings, and defendant made a new statement which was videotaped.
It is manifest that Statement No. 1, made to Detective Bresciani at the emergency room, did not constitute custodial interrogation. The detective merely spoke to defendant about his child and defendant was clearly not in custody at the time. Miranda warnings were clearly not required to be given at this time. Defendant's motion to suppress Statement No. 1 is. therefore, denied.
The Appellate Division, First Department, has consistently held that where, as here, a suspect voluntarily accompanied the police to the precinct, was neither handcuffed nor placed in a cell and interviewed in a non-accusatory manner, that the defendant was not in custody and thus Miranda warnings were not required. See People v. Rivera, 7 AD2d 358 (1st Dept.) lv. denied 3 NY3d 741 (2004); People v. Barrow, 284 AD2d 145 (1st Dept.), lv. denied 96 NY2d 916 (2001).
Accordingly, Statement Nos. 2 — 4 did not constitute custodial interrogation. Although conducted at the precinct, a reasonable person in defendant's position, innocent of any crime, would not have believed he was not free to leave. The officers simply asked defendant what had happened and received a response in a calm, low-key manner. Defendant's motion to suppress these statements are denied.
In Statement Nos. 5-7, defendant made three false exculpatory statements regarding causation. After each statement, the detectives observed that each statement made by defendant was inconsistent with the Medical Examiner's report. Although the pressure had been increased, this still does not fall within the ambit of custodial interrogation.
Several recent court decisions have held that a suspect was not in custody even after the police present him with incriminating evidence. In People v. Dillhunt , 41 AD3d 216 (1st Dept. 2007), lv. denied 10 NY3d 764 (2009), for example, the defendant, voluntarily accompanied the police to the precinct after an officer told defendant he "needed" to speak to him. Defendant remained un-handcuffed and unrestrained while the police questioned him in a non-threatening manner. The First Department found that a reasonable person in defendant's situation would have believed that the police were still in the process of gathering information about the incident, even when the officer showed defendant a police report implicating defendant in the crime. Accordingly, defendant's motion to suppress Statement Nos. 5-7 is denied.
After Statement No. 7 was made, however, the nature of defendant's status had noticeably changed. Defendant had been kept in a locked room all afternoon, the veracity of his first three false exculpatory statements had been questioned, but now his fourth false exculpatory statement, was directly challenged by the detective who told defendant that he "needed to tell the truth."(H56). The atmosphere had changed to the point that the defendant was now a target of the investigation. At this point, a reasonable person, innocent of any crime, would not have believed he was free to leave. Accordingly, the questioning that resulted in Statement No. 8 was custodial interrogation. Since defendant had not yet received Miranda warnings at this point, Statement No. 8 is required to be suppressed.
Although Detective Maysonet promptly administered a full and complete version of the Miranda warnings prior to the continuation of any questioning, the written Statement No. 9 must also be suppressed. "[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must be suppressed." People v. Paulman , 5 NY3d 122 (1995) citing People v. Chapple, 38 NY2d 112, 114-115 (1975); See People v. Kollar, 305 AD2d 295, 299 (1st Dept. 2003). Therefore, Statement No. 9, which directly followed Statement number 8 in time must also be suppressed.
Assistant District Attorney Takantzas administered a new set of warnings 1 ½ hours after defendant made Statement No. 9. This "pronounced break between the statements in question . . ." certainly ". . . sufficiently attenuated . . ." any potential impropriety. People v. Rodriguez , 55 AD3d 351 (1st Dept. 2008).
On October 21, 2009, the defense submitted a 3-page letter brief on attenuation; on October 30, 2009, the People submitted a 4-page letter brief on this issue.
Indeed, as the Court of Appeals observed in Paulman, . . . New York courts have considered a number of factors, including the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police.
(footnotes omitted).
Judged by these standards, there is no doubt but that the videotape statement was sufficiently attenuated from the lone impropriety to more than justify its admission.
Moreover, the People established beyond a reasonable doubt that statements 1 through 7 and 10 were knowingly and voluntarily made and that defendant's rights under Miranda were not violated.
Although defendant did not expressly waive his rights to silence and the presence of counsel prior to speaking with A.D.A. Takantzas, the defense has not argued that this statement must be suppressed on this ground. This is not surprising since the case law is clear that "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver . . ." supports a conclusion that defendant waived his rights. North Carolina v. Butler, 441 U.S. 369, 373 (1979). Where, as here, a defendant writes "yes" next to each warning, does not ask any clarifying questions and immediately proceeds to give a statement, a waiver of defendant's rights can be inferred. People v. Sirno, 76 NY2d 967, 968 (1990). Accordingly, defendant waived his rights under Miranda and therefore, defendant's motion to suppress this statement is denied.
After ADA Takantzas advised defendant of his Miranda rights, the following colloquy occurred:
ADA . . . Now that I have advised you of these rights, are you willing to take your opportunity to say whatever you would like to us about what happened Thursday into Friday, December 1st.
Defen. I . . . I have no idea. I'm . . .
ADA Start wherever you would like, sir, whatever you feel . . .
Defen. I just want my wife to know that I'm sorry. I was just holding a lot and I just don't know what came over me.
(p. 2 of transcript from October 30, 2009 letter from ADA Militano).
Waiver may be inferred from "silence, coupled with an understanding of[the defendant's]rights and a course of conduct indicating waiver.'" North Carolina v. Butler, 441 U.S. at 373. See United States v. Tutino, 883 F.2d 1125, 1137-38 (2nd Cir, 1989), cert. denied 493 U.S.1080 (1991).
Conclusion
Defendant's motion to suppress statements made by him is denied with respect to statements 1 through 7, is granted with respect to statements 8 and 9, and is denied with respect to statement 10.
This constitutes the decision and order of the court.