Opinion
2762-2004.
Decided October 28, 2005.
Hon. Thomas J. Spota, District Attorney, Suffolk County, By: Patricia Brosco, Assistant District Attorney, Riverhead, New York, Ira R. Weissman, Esq., Central Islip, NY, Attorney for Defendant.
A combination Huntley and Dunaway hearing was held in this case over several days in August and September 2005. Both sides called witnesses, and essentially, their testimony can be summarized as follows:
Detective James Mihalik of the Suffolk County Homicide Squad indicated he began investigating the death of Frank Howell on November 21, 2004. On Thanksgiving Day, November 25th, he was in an unmarked Chevy Malibu, northbound on Belmont Avenue in North Babylon, when he observed defendant, in a GMC Jimmy, stopped at a light in front of him. Mihalik noticed one of his colleagues, Detective Gerard McAlvin approaching defendant's vehicle holding his shield in his left hand. He saw defendant put his vehicle in reverse, striking McAlvin's vehicle, and then forward, striking a vehicle driven by Detective Edward Fandry.
Defendant pulled away, with Mihalik, McAlvin and other police vehicles in pursuit. There came a point where Belmont Avenue ended in a T intersection with August Road. The police were able to surround or box defendant in, and then, with guns drawn, and despite his resistance, pull him from his car. Two of the police cars sustained damage.
Defendant was taken into custody at about 11:50 PM and charged with reckless endangerment and resisting arrest. He was transported to police headquarters in Yaphank and, at about 12:15 AM, placed in an interview room. He was searched and among his property was a cell phone. Detective Fandry entered the room at about 12:25 AM to begin the prisoner activity log. Defendant appeared calm and stable.
When Fandry left, Mihalik introduced himself and Detective Portello to defendant (they told him they were from the Homicide squad), and read defendant his rights from a card. Defendant signed, dated and timed the card (12:30 AM), and wrote in his answers to the waivers: yes, no and yes. Mihalik noted the central complaint number for the homicide on the card. He began by asking pedigree questions, with Portello taking notes. Mihalik asked about the accident with the police cars, and defendant apologized. He said he was scared. Mihalik asked about the Howell homicide, and defendant indicated he had heard about it it occurred in his girlfriend's neighborhood. At first, defendant indicated he had not heard about the homicide, but then said he heard somebody got killed.
They spoke about defendant's girlfriend and her family. Mihalik asked where defendant had been the previous Friday night and defendant indicated he was with his girlfriend and her two cousins at a bar. He asked defendant what he had heard about the murder, and defendant replied nothing, although he initially said he heard about it from his girlfriend. He was asked whether he knew the victim, and defendant indicated no. Mihalik told defendant they had cell phone records showing that defendant was the person the victim had called just before the murder and they were in the same general location at the time. Finally, defendant indicated he and the victim were good friends, having met ten months ago. Defendant indicated he in fact met the victim the night he was shot, and he felt bad about it. When asked why, defendant said because he (defendant) had "set him up." When asked who shot him, defendant indicated he could not tell because the shooter was a gang member.
It was at this time, i.e., at 2:10 AM, that defendant was placed under arrest for the murder. However, according to Mihalik, defendant remained uncuffed.
After a break in the interview, Mihalik and Portello took up the questioning again at 3:00 AM. Defendant repeated that he set the victim up, that he got him to the place where he was killed, but he couldn't say who it was who killed him because the killer was a gang member and the gang knew where defendant's girlfriend lived. Defendant did say that the killer's first name was Joe.
These conversations between the two detectives and defendant went on for two or three hours there was a bathroom break at 5:00 AM and the interview resumed at 5:30 AM. Defendant was given cookies and water. They spoke about this fellow "Joe," and defendant described the shooting. They took another break at 7:30 AM. Between 5:30 and 7:30 AM, Mihalik described defendant as being calm and cooperative. Between 7:30 and 8:30 AM, defendant remained in the interview room uncuffed. When detectives reentered at about 8:30 AM, defendant was resting his head on the table. Mihalik read him his rights from a form. Defendant appeared to read along. Defendant initialed the warnings on the form and wrote yes, no and yes to the waivers and initialed each answer. Over the next three and one-half hours, Mihalik wrote out a five page statement which defendant signed. He also initialed the bottom of each page and one or more corrections. They completed the statement at about 12:00 noon.
In the statement, defendant gave a version of the shooting wherein he and a friend named Joe (his last name turned out to be Dingwerth), who he described as a white dude, almost 6'1" tall, and 250 to 260 pounds, and from whom defendant bought his heroin, got together on Saturday morning (the morning of the shooting) at about 2:00 AM to "do dope." Joe had complained earlier in the week that Frank Howell was stealing customers from him and directing them to another dealer. In addition, defendant had sold Joe a 40 caliber black handgun just before Halloween. In any event, defendant and Joe were parked near defendant's girlfriend's house at about 3:30 AM when defendant received a call from Frank saying he was coming by on his way from work. Defendant told Frank to meet them on Montgomery Street which was around the block. When Frank arrived, defendant went up to the car, and Joe was walking behind him. Joe started calling Frank names and accused him of stealing his customers. Joe pulled out a gun it looked like the one defendant had sold him and shot Frank. Defendant heard between three and five shots. Defendant ran back to his girlfriend's house, got his keys, and went home. He did not know what happened to Joe.
While defendant was giving the statement, the police made one or more attempts to contact Joe. They used defendant's cell phone, with defendant dialing the number. Shortly before 1:00 PM, they spoke to Joe and, shortly thereafter, Joe was brought to police headquarters where he was questioned. At about 2:00 PM, defendant was brought to the bathroom and then, briefly, to the room where Joe was being questioned. He was brought back to his own interview room at about 2:15 PM and Mihalik told defendant that "we have a problem." The police had concluded that Joe had nothing to do with the shooting.
Mihalik read defendant his rights again, from a card. Defendant remained uncuffed. Defendant again answered "yes," "no" and "yes" to the waivers, initialed them, and signed the card at about 2:15 PM. Mihalik indicated that Joe told them he bought his drugs from defendant, but defendant insisted it was Joe who shot Frank, not him. They went over this again and again. The police asking why he killed Frank, and defendant saying he did not, (because) Frank never did anything to me. The police asked defendant whether Frank did something to defendant's girlfriend, or to defendant's baby daughter. Finally, sobbing, defendant said he did do it, he shot Frank. When asked why, defendant said he had gone to Frank's place a couple of days before, and left the baby with him while he went to cop some drugs. When he returned, he looked into the window and saw the baby on the bed, with Frank standing next to her, with his penis near her mouth. Defendant went inside, and took the child home without saying anything.
This conversation started at about 2:15 PM, and finished at about 2:40 PM, at which time, Mihalik read defendant his rights again from a statement form. Defendant initialed each of the rights, and wrote yes, no and yes in answer to the waivers and initialed his answers as well. The defendant's account of how, a few days after finding Frank undressed with his daughter, he arranged to meet him around the block from his (defendant's) girlfriend's house, at 4:00 AM, to "hang out," and how, as Frank pulled up in his car, defendant approached with a handgun in his right hand under his jacket and shot him, was reduced to writing in a three page statement. Defendant signed his name on the bottom of each page, initialed the one or more corrections, and swore to the truth of the contents.
At about 4:30 PM, defendant was given a sandwich, and, about ten minutes later drew a map and diagrams of the murder scene. He then wrote on some photographs, finishing at about 5:00 PM. The police asked defendant whether he would give a video statement, but defendant declined. He signed a refusal form. At one point, Mihalik indicated to defendant that his supervisor, Detective Sergeant Fandry, did not believe his story concerning Frank and his daughter. Defendant became visibly upset. He curled his fist and got up from his chair "in an aggressive manner," saying "I just want out of here." The two detectives had to physically restrain him and push him back down into the chair. In doing so, the defendant's right shoulder hit the wall behind him, and left an indentation in the sheetrock.
About 6:42 PM, they left the precinct and defendant accompanied them to a residence in Wyandanch where the owner consented to a search of the premises. They recovered certain items, including a computer, a 45 caliber gun, a spent casing, and 148 packets of heroin. They then went to a second residence in, Brentwood, where they recovered another handgun. They arrived back at headquarters at 8:55 PM. A few minutes later, they took defendant to the bathroom and then back to the homicide squad.
Detective Mihalik acknowledged that they interviewed defendant over seventeen hours, although there were a "couple of hours" of "breaks." He admitted it was a "ruse" when he told defendant that they had proof that defendant's cell phone and the victim's cell phone had been right next to one another at about the time of the murder. He admitted that when questioning suspects, he expected "people to lie." He knew defendant had a prior arrest on drug charges, but was not aware of the outcome of that case.
The defendant called Joseph Dingwerth, and he testified that when he saw defendant at police headquarters for thirty to forty seconds on the night in question (November 25th), defendant's hands were tied behind his back above his head, and his neck and face were red. He looked like he was being beat up. Nothing was said between them.
Leticia Ramirez, defendant's mother, testified that she was admitted to the Bar and working as a Court Attorney to a Civil Court Judge in New York County. At 9:30 AM on November 26th, she learned that her son was "missing." She claimed she called police headquarters in Yaphank at about 11:40 AM to inquire about him, and then at about 11:58 AM, she placed a call to a friend of hers, Wanda LaVista, who was a detective in Suffolk County. Detective LaVista supposedly called her back around 12:20 to advise that her son was not under arrest, and then, shortly after 2:00 PM, to indicate he had been involved in a car accident. She called the First Precinct. She also called Good Samaritan Hospital, but was unable to locate her son. Finally, around 7:00 PM, she learned he was under arrest, and charged with murder.
Defendant Michael Tineo testified that on November 26, 2004, he dropped off his daughter and was on his way to his father's house when the car in front of him stopped, and the driver got out with a gun in his hand. He put his car in reverse, hit the car behind him, and then threw his car into drive and drove away. Eventually, he was boxed in and stopped. He was pulled from his vehicle, punched in the head, cuffed and put in an unmarked car. While being transported, Detective Portello hit him on his head and face with his fist and an open hand. Detective Mihalik began questioning him. At headquarters, he was told to strip naked and after being "searched" he was allowed to get dressed and was handcuffed to a chain that was bolted to the floor. When he told them he wanted to speak to his attorney, Portello smacked him and repeated it each time he gave a "wrong" answer. There came a point on the first night (Friday) when two detectives (other than Mihalik and Portello) pushed his right shoulder through the wall and, throughout, detectives were punching, pulling, slapping, stepping on his neck and kicking him. And all the time, he was chained to the floor, from his arrival at headquarters shortly before midnight on November 25th, until 8:00 AM the next day.
On November 27th (Saturday) he saw a nurse at the jail in Riverhead but did not complain to her of any "physical injury," or any police beatings. The reason was because his mother knew someone at the jail who told him not to complain — he would have more problems in the jail if he did.
Only after all the questioning was over was he given any food and/or allowed to make a telephone call. He did not place any initials on the first statement until after the second statement was completed. All the rights cards were signed at the same time, i.e., at the end of the night. In addition, the rights were never read to him. He never read the first statement (the one implicating Joe) until after he appeared in Court. He was given the second statement but never read it. He was crying, and he remembered his tears hitting the paper. He simply put it back on the table. When talk of a video came up, the police insinuated that he should not make one — "you don't want to give a video do you?" As for his writings on the photos, the police told him what to write and where. When he was finally allowed to make a phone call, he called his father because he had borrowed his truck on the night before Thanksgiving.
Detective Wanda LaVista (who was called by defendant) acknowledged that defendant's mother had called her on November 26, 2004, to ask for help in locating her son. The two of them were close friends for many years. She called the Third Precinct and Fifth Precinct and was told by someone in each that defendant was not being held there. It was not until the next day that she learned defendant had been arrested. In placing the calls, Detective LaVista inquired about a "Michael Ramirez" (his mother's name), not Michael Tineo.
The People called two rebuttal witnesses: Maximilian Fisher, a correction officer at the Riverhead Jail and Paula Mecagni, a nurse employed by the Health Department at the Jail. Essentially, they testified that at "intake" and when screened by the medical staff on November 27th, defendant made no complaint about, nor did he show any evidence of the beatings and bruises he allegedly received at the hands of the detectives. Mecagni did note, however, that after answering "no" to whether he had any injuries, defendant changed his answer a few minutes later to indicate he had bruises on his thighs. She asked to see them, and defendant pulled his pants up to show her, but she saw no bruises, or swelling or redness.
Conclusions of Law
The defendant puts forth the following arguments, viz.:
(1) that the "second oral and written statements" were given after his right to counsel had indelibly attached;
(2) that his right to counsel was violated when the police "impermissibly intermingled" questions about a pending case in which counsel had appeared with questions about the unrelated homicide;
(3) that the People failed to prove the statements attributed to defendant were given voluntarily and/or that he knowingly and intelligently waived his Miranda rights; and
(4) that he was arrested without probable cause.
In support of his argument that his second statement (the one in which he indicated he killed Frank after finding him undressed with his daughter) must be suppressed, defendant cites the line of cases which, in essence, hold that once an attorney enters a criminal proceeding on behalf of a client who is in custody for charges under investigation, the client may not waive his right to counsel without his attorney being present (see, e.g., People v. Garofolo, 46 NY2d 592; People v. West, 81 NY2d 370).
Defendant contends that his mother was acting as his attorney when she called headquarters at about 11:40 AM on November 26, 2004. The problem is, the facts show otherwise. She was acting as his mother, and making frantic efforts to find out where he was. All she knew on the morning of November 26th, was that her son was missing. When she supposedly spoke to someone at headquarters, at about 11:37 AM, she said, simply, "Hi. My name is Leticia Ramirez. I'm an attorney. I'm looking for Michael Tineo. Do you have any information?" She was told no, they didn't.
Those brief comments were hardly enough to put anyone on notice that she was calling as her son's attorney and was telling the police that they were not to question him. There was no evidence she was even aware he was under arrest. She was looking for him: she was calling the police, the hospital, and even friends for help in finding out where he was. It is clear from her testimony, and her position as a Court Attorney for a Judge in New York City, that she was not "representing" her son when she was making the calls.
The case law is clear that the burden is on the defendant to prove that counsel had actually "entered" the matter about which he was being questioned (see, People v. Henriquez, 214 AD2d 485, 486). The defendant has not met that burden here. The facts here are more similar to those in People v. Grice, 100 NY2d 318, where it was held that the defendant's right to counsel was not violated where the police continued to question the defendant after his father had informed a detective that an attorney was en route to the police station. There was no proof Leticia Ramirez had entered this case as her son's attorney when she called headquarters on November 26th (compare the scenario in this case to what occurred in People v. Garofolo, supra at 600, where the attorney who spoke to the police ". . . sufficiently identified his professional interest in the . . . charge").
Nor is this a case where an attorney was seeking to intercede in a client's behalf and was prevented from doing so by police misinformation or one where it is claimed the police intentionally deprived the defendant of access to his family. There is nothing in the record to suggest either scenario (see, People v. Casassa, 49 NY2d 668, 681-82).
The testimony at the hearing showed there was barely any mention of defendant's prior arrest during the many hours of questioning about the homicide. Clearly, there was nothing to show that the two matters were so closely related transactionally, or in space or time, that questioning on the one would inevitably elicit incriminating responses regarding the other ( People v. Cohen, 90 NY2d 632, 638-641).
Mihalik testified that at one point during the questioning he told defendant they were aware he had been arrested about four and one-half months earlier for possession of thirty-eight bags of heroin with intent to sell. Defendant admitted the arrest and possession, but insisted the heroin was for himself, not for selling. Mihalik asked defendant whether Frank was a "user," and defendant said he was, i.e., not a seller. Mihalik acknowledged he mentioned the prior arrest to let defendant he "knew about it" and knew of his drug connection with Frank. The hope or goal was to have defendant tell him more about the shooting. The key thing is there was no evidence the police were aware the prior case was still pending and/or whether defendant was represented by counsel. In the context of the hours of questioning, the reference to the prior arrest was merely a footnote.
But again, in this case, the subject of the questioning about the homicide and the subject of defendant's prior arrest were not so interwoven in their temporal proximity and factual interrelationship as to render "unavoidable" the conclusion that any questioning concerning the latter would almost inevitably involve some incriminating discussion of the former. There was virtually no relationship between the two here, except that they both involved the defendant (see, People v. Cohen, supra at 639).
Detective Mihalik testified that he read defendant his rights from a card as soon as they were settled in the homicide squad, and that defendant signed, dated and fixed the time at 12:30 AM. Defendant also wrote in his answers to the waivers, i.e., yes, no and yes.
He and Detective Portello spoke to defendant for about an hour and one-half when they came to the point where defendant admitted knowing the victim and expressed the view "he felt bad" because he had "set him up." It was about 2:10 AM, and defendant was placed under arrest.
At about 3:00 AM, the questioning resumed and defendant took the position that the one who killed Frank was a gang member, but he could not reveal his name because of the fear of retribution against his girlfriend. They took a break in the questioning at 5:00 AM, and resumed at 5:30 AM when the conversation focused on "Joe." There was another break between 7:30 and 8:30 AM, following which Mihalik read defendant his rights from a (statement) form. Defendant initialed each of the rights, wrote his answers and initialed each of the waivers, and signed his name.
Over the next three plus hours, Mihalik wrote out a five page statement which defendant signed. Defendant also placed his initials on each page and next to one or more corrections that were made.
After Joe Dingwerth was brought to headquarters and questioned, and the detectives concluded he had nothing to do with the shootings, Mihalik read defendant his rights again, from a card. Defendant again answered "yes," "no," and "yes" to the waivers, initialed his answers and signed the card at about 2:15 PM. After more questioning, and defendant's narrative about finding Frank undressed near his daughter, Mihalik read defendant his rights again from a statement form. Defendant initialed each of the rights, wrote his answers to the waivers, and initialed them. The second statement (three pages) was written out by Mihalik. Defendant signed the bottom of each page, initialed the corrections, and swore to the truth of the contents.
It was now about 4:30 PM: defendant drew a map and/or diagram of the murder scene, and wrote on some photographs. He declined to give a video statement, and signed a refusal form.
The above summary of the testimony shows that defendant was read his rights no less than four times, and each time, he, in his own hand, indicated he understood and was willing to waive them. The time of the day was included on the rights cards and the statement forms. His testimony that he was given the cards and forms to initial and sign only after all the questioning was done, just does not make sense.
On the issue of voluntariness, defendant testified the police beat him continuously — a claim not only denied by Detective Mihalik, but belied by photographs taken of defendant at headquarters after 9:00 PM on November 26th (after all the questioning was over), and by the testimony of Correction Officer Fisher and Nurse Mecagni at the Jail who saw and spoke to defendant upon his arrival at the facility. Some aspects of defendant's custodial interrogation are troubling, e.g., the length of time he was held, the claim he was uncuffed throughout, the undisputed fact defendant was pushed against the sheetrock in the room with such force that his shoulder left a hole in the wall. But, as is usually the case, it comes down to credibility. Who to believe? On balance, the Court must side with the prosecution's version. Defendant testified, and was subject to a lengthy cross-examination. Some portions of his testimony strained credulity, for instance, that he did not read the second statement because he was crying so badly that his tears fell on the paper. The same is true of his claims that he drew the diagrams and wrote on the photos in his own hand, but the words he used were not his words; or that he was handcuffed to a chain on the floor and unable to stand up straight the entire time; or that he never complained of the beatings when he arrived at the jail because "someone" told his mother he would have more problems if he did so.
Parenthetically, it should be noted that a close examination of the "second" statement, which was hand-written in ink, fails to reveal any evidence of tear stains.
The bottom line is there was sufficient evidence presented at the hearing to show beyond a reasonable doubt that this twenty-one year old high school graduate, whose mother was an attorney, and who had prior experience with the criminal justice system, was advised of his constitutional rights no less than four times, that he understood them, and voluntarily and intelligently waived them. There was insufficient evidence presented to show that he was coerced, or that his will was overcome by force or threats of the use of force, or that he was "starved into submission," or that he was deliberately kept from speaking to his family, or from contacting an attorney. In other words, the totality of circumstances show that defendant was given his rights, understood them, voluntarily waived them, and spoke to the detectives at length (see, People v. Tarsia, 50 NY2d 1, 12-13; People v. Alver, 111 AD2d 339; People v. Schultz, 161 AD2d 970; People v. Smith, 208 AD2d 966). For whatever reason, he was willing to keep talking: he went from claiming he knew nothing about the killing or the victim, to claiming that he knew the victim and knew the person who shot him to be a gang-member whose name was Joe, to admitting he shot the victim because he thought the victim had sexually abused his young daughter.
Finally, there is the issue of probable cause to arrest. The law is clear that probable cause does not require proof beyond a reasonable doubt but merely information which would lead a reasonable person, possessing the same experience as the arresting officer, to conclude, under the circumstances, that a crime was being or had been committed (see, People v. McRay, 51 NY2d 594, 602; see also, People v. Davis, 144 AD2d 379, 380).
Detective Mihalik testified that a neighborhood canvas of the area where the shooting occurred showed that a neighbor called the police to report hearing three gunshots at about 4:46 AM. The police learned that Frank Howell worked in Nassau County as a cab driver, and that prior to leaving work on the morning in question he spoke to a friend and told her that he was going to meet someone named Mike, who he owed some money (Mike was his dealer) and he did not want to go by himself. Howell left work at about 4:20 AM.
Detective Mihalik also knew, from Howell's phone records, that he often called a phone listed to defendant's girlfriend's mother-sometimes five or six times a day. The phone records also showed that the last number Howell called on the morning of the shooting was the defendant's, and that at the time of the shooting, the two cell phones were in the "same general area."
It seems clear from the above that a reasonable person, with the experience of the detectives here, could conclude that defendant was involved in the shooting of Frank Howell in the early morning hours of November 21, 2004. It also seems clear that when the Suffolk police surrounded him on the North Babylon street on November 25th, they had probable cause to arrest him on the murder charge. His flight and resistance just gave them an additional reason.
In sum, there was probable cause for the arrest and defendant's statements — oral and written — as well as the diagrams and photos, etc., are all admissible at defendant's trial. It will be up to the jury to decide whether they are voluntary and truthful.
The foregoing constitutes the decision and order of the Court.