Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15