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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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People Failed to Prove Low IQ Defendant Validly Waived His Miranda Rights and Gave Statements Voluntarily—Convictions Reversed, Some Charges Dismissed and New Trial Ordered

The Fourth Department, in a full-fledged opinion by Justice Peradotto, found that the defendant’s statements should have been suppressed because the People failed to prove the defendant intelligently waived his right to remain silent and because the People failed to prove his statements were made voluntarily.  The evidence indicated defendant has an IQ of 63 or 68.  There was a video of defendant’s interrogation. And the defense presented expert opinion evidence that the defendant was not capable of intelligently waiving his Miranda rights, and, because of the leading nature of the interrogation and defendant’s excessively compliant nature, the defendant did not make his statements voluntarily:

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People’s expert acknowledged that defendant was “intellectually handicapped,” with a full-scale IQ of 68, but concluded that defendant was “not that retarded” and could understand his Miranda rights. The defense expert testified that defendant’s IQ placed him in the “mentally retarded range of intellectual functioning.” Defendant’s verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant’s “very poor” level of verbal functioning, the defense expert opined that, although defendant was “able to understand the words of the Miranda rights,” he was “not capable of intelligently waiving” those rights. He further opined that defendant was “a very suggestible and very compliant man as is not atypical of persons who are mentally retarded,” which placed him at risk of falsely confessing. * * *

Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” … . “A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” … . A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” …, i.e., “how the Miranda rights affected the custodial interrogation” (id. at 289). It must therefore be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” … . * * *

As the defense expert testified at trial, “[w]hat became very clear in the video . . . was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know.” Many, although not all, of defendant’s responses consisted of “mmm-hmm,” yes, and a parroting back of the detective’s statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was “not lying,” and that the medical examination was going to show that “something happened” between defendant and the victim. The defense expert testified that such tactics “would lead [defendant] to question his own memory of the situation which isn’t good to begin with. He’s got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer.” People v Knapp, 2014 NY Slip Op 07801, 4th Dept 11-14-14

 

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Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[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 also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

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“Preamble” to Miranda Warnings Used In Queens County Undermined the Effectiveness of the Miranda Warnings—Defendants’ Statements Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that the “preamble” to the Miranda warnings used by the police and the District Attorney's staff in Queens County undermined the effectiveness of the warnings to the extent that the defendants (Dunbar and Lloyd-Douglass)  were not adequately and effectively advised of their Fifth Amendment right to avoid self-incrimination:

[The “preamble” was as follows:]

“If you have an alibi, give me as much information as you can, including the names of any people you were with.

“If your version of what happened is different from what we've been told, this is your opportunity to tell us your story.

“If there is something you need us to investigate about this case you have to tell us now so we can look into it.

“Even if you have already spoken to someone else you do not have to talk to us.

“This will be your only opportunity to speak with us before you go to court on these charges.” * * *

Before they were read their Miranda rights, Dunbar and Lloyd-Douglas were warned, for all intents and purposes, that remaining silent or invoking the right to counsel would come at a price —they would be giving up a valuable opportunity to speak with an assistant district attorney, to have their cases investigated or to assert alibi defenses. The statements to “give me as much information as you can,” that “this is your opportunity to tell us your story” and that you “have to tell us now” directly contradicted the later warning that they had the right to remain silent. By advising them that speaking would facilitate an investigation, the interrogators implied that these defendants' words would be used to help them, thus undoing the heart of the warning that anything they said could and would be used against them. And the statement that the prearraignment interrogation was their “only opportunity” to speak falsely suggested that requesting counsel would cause them to lose the chance to talk to an assistant district attorney.

In sum, the issue in these cases is not whether, under the totality of the circumstances, these defendants' waivers were valid, but rather whether or not they were ever “clearly informed” of their Miranda rights in the first place, as is constitutionally required. We agree with the Appellate Division that they were not: the preamble undercut the meaning of all four Miranda warnings, depriving Dunbar and Lloyd-Douglas of an effective explanation of their rights. People v Dunbar, 2014 NY Slip Op 07293, CtApp 10-28-14

 

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Although the Police Could Have Done More to Make Sure Defendant Was Not Represented by Counsel Before Questioning Him, Defendant’s Prior Attorney’s Statement to the Police that He Was No Longer Representing the Defendant Was Enough

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the police properly questioned the defendant without an attorney present after they were told by defendant's prior attorney that the he no longer represented the defendant. Defendant was represented on a robbery charge. After defendant indicated he had knowledge of the commission of an unrelated murder, he entered a plea bargain which promised a reduced sentence if he provided useful information about the murder.  The police who interviewed the defendant about the murder did not believe his story and the defendant did not receive a reduced sentence for the robbery.  Subsequently, the police suspected defendant was himself involved in the murder.  Before questioning the defendant, the police met with the attorney who had represented the defendant on the robbery charge.  The police did not tell the attorney why they wanted to question the defendant. The police then elicited statements from the defendant without any further inquiry about whether he was represented by counsel.  The dissent argued that there was ambiguity about the defendant's representational status, the burden was on the police to make sure the defendant was no longer represented before questioning him, and that burden was not met here:

Here, the police did have a reason — an excellent one — to believe that the attorney-client relationship had ceased: the attorney had told them so. By asking the question and getting an unequivocal answer, the police discharged their burden. It is no doubt true that they could have done more. They could have explained to [defendant's attorney] exactly why they were eager to talk to defendant, or they could have asked defendant himself whether the relationship had reached an end. Perhaps had they done so, they would have received a different answer. But the police are not required to take all imaginable steps to protect a defendant's right to counsel. Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more … .  People v McLean, 2014 NY Slip Op 07085, CtApp 10-21-14

 

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Videotaped Interview Indicated Defendant Did Not Understand His Right to Counsel—The Videotaped Statement, As Well As the Prior Oral and Written Statements, Should Have Been Suppressed

The First Department determined the People did not meet their burden of demonstrating the defendant understood his Miranda rights at the time he waived them.  After waiving his rights and making an oral and written statement, the defendant spoke with the Assistant District Attorney (ADA).  During that conversation, which was videotaped, the defendant gave responses which indicated he did not understand he had the right to talk to his own attorney before speaking with the ADA.  The court determined that the videotaped statement, as well as the prior oral and written statements, should have been suppressed:

…[I]t is not clear that this 18-year-old defendant with no prior criminal history, who could not read or write, ever understood his right to counsel nor the consequences of waiver. The evidence shows that defendant responded “yes” to questions when asked if he understood his rights. Then, immediately afterwards, defendant expressed confusion in understanding his right to counsel. As such, the People failed to present evidence that established defendant sufficiently understood the immediate import of the Miranda warnings. Moreover, ADA Elliot’s explanations failed to clarify for defendant the concept of his right to counsel. Thus, given defendant’s age, illiteracy, unfamiliarity with the criminal justice system, and statements expressing confusion about his Miranda rights, it is evident that the People failed to establish a knowing and intelligent waiver of Miranda rights … . People v Adames, 2014 NY Slip Op 07063, 1st Dept 10-16-14

 

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Spontaneous Statements Made After Request for Counsel Properly Admitted—911 Call Properly Admitted as an Excited Utterance

The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded … . However, “[n]otwithstanding 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 ” … . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant’s statements were not “the result of express questioning or its functional equivalent” … . That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure … . * * *

Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim’s 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” …, although “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

Here, the victim testified that, although she had followed defendant’s car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim’s call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” … . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14

 

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Out-of-Court Statements by Defendant and Unknown Woman with Whom Defendant Spoke on the Phone from Jail Admissible

The Fourth Department determined that out-of-court statements made by the defendant in phone calls from jail and a statement made by an unknown woman defendant was talking to were admissible because they were not offered for the truth of the matters asserted:

Defendant … contends that the court erred in admitting in evidence the recordings of two telephone calls he made from jail following his arrest. During the first call, defendant said to an unknown female, “Tell him [defendant’s father] what happened to my ID.” Defendant was referring to his claim that his jacket, containing his parole identification card, had been stolen from his father’s car. During the second call, an unknown female informed defendant that his father told the police that his car had not been running for “a long-ass time,” and in response defendant instructed the female to tell his father “not to mention” that the car was not running. We reject defendant’s contention that his own above-referenced statements constitute inadmissible hearsay. The statements in question were not offered for the truth of the matters asserted …; instead, they were offered to show that defendant appeared to be fashioning an innocent explanation for the fact that his parole identification card was found at the crime scene. Defendant failed to preserve for our review his contention that the statement made by the unknown female during the second call constituted inadmissible hearsay. In any event, that statement was admissible to put defendant’s responding statement into context by providing “necessary background information to the jury” … . People v Scarver, 2014 NY Slip Op 06713, 4th Dept 10-3-14

 

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Suppressed Statement Improperly Allowed to Be Used to Impeach Defendant—Defendant Did Not Open the Door for Use of the Statement by Contradicting It On Direct

The Fourth Department determined statements made by the defendant, which had been suppressed, were improperly admitted to impeach the defendant (harmless error however):

…Supreme Court erred in permitting the prosecutor to impeach him with the statement that he made to State University police officers. That statement had been suppressed, and defendant did not open the door to its use for impeachment by giving testimony contrary to the statement during his direct examination… . People v Blair, 2014 NY Slip Op 06730, 4th Dept 10-3-14

 

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“Door-Opening Rule” Applied to Allow Otherwise Inadmissible Evidence/Jury-Note Error Not Preserved

The Fourth Department determined evidence of a phone conversation which was otherwise inadmissible was properly admitted to rebut a “misleading impression” created by the defendant under the “door-opening rule.”  In addition the court held that the failure to notify defense counsel of the contents of a jury note, although error, was not preserved for appeal:

Under the “door-opening” rule …, otherwise inadmissible evidence, such as the telephone conversation at issue here, may be admitted in evidence for the purpose of rebutting a “misleading impression” created by the defendant … . Here, defendant was attempting to evoke the jury’s sympathy by testifying about her remorse and anguish over the victim’s death. Specifically, defendant testified that, upon learning of the victim’s death, she “started flipping out,” “bouncing my head off walls,” “screaming,” and “going nuts.” She further testified that she “didn’t want to live,” “refused to eat,” and was “on suicide watch.” We conclude that the court properly permitted the People to introduce the telephone conversation in evidence to rebut defendant’s testimony of remorse and anguish … . * * *

Defendant contends in the supplemental brief submitted by appellate counsel with leave of this Court that the court failed to apprise her of a jury note and that such a failure constitutes a mode of proceedings error requiring reversal of the judgment, even if unpreserved … . We reject defendant’s contention that preservation was not required. Here … “the record does not indicate that the court gave defense counsel notice of the contents of the note outside the presence of the jury, but it establishes that the court read the note verbatim before the jury, defense counsel, and defendant. Defense counsel raised no objection” … . Under such circumstances, defendant was required to preserve the alleged error by objection … . We decline to exercise our power to address defendant’s contention as a matter of discretion in the interest of justice … . People v Stoutenger, 2014 NY Slip Op 06688, 4th Dept 10-3-14

 

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