People v. Abbott
| Decision Date | 15 April 1982 |
| Citation | 113 Misc.2d 766,449 N.Y.S.2d 853 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Jack Henry ABBOTT, Defendant. |
| Court | New York Supreme Court |
Robert Morganthau, Dist. Atty., New York County (James Fogel, Asst. Dist. Atty., of counsel), for the People.
Jack Henry Abbott was convicted of manslaughter in the first degree by jury verdict in New York State Supreme Court on January 21, 1982. The issue before this court is whether the defendant's previous felony convictions require that he be sentenced as a persistent violent felony offender pursuant to Penal Law Section 70.08 and CPL Section 400.16.
The defendant's first felony conviction occurred in the state of Utah in 1967 where he was convicted of assault of one convict on another by means of a knife. The sentence imposed was three to twenty years in prison. The second felony conviction occurred on December 13, 1971, when Abbott pled guilty to bank robbery in the United States District Court for the District of Colorado and received a sentence of nineteen years in prison. The defendant does not controvert the fact of these convictions, nor that the elements of the crimes would be violent felonies in New York (see People v. Olah, 300 N.Y. 96, 89 N.E.2d 329) but claims the convictions were unconstitutionally obtained.
To consider the constitutional challenges it is necessary to review the circumstances surrounding the out of state convictions.
The defendant was convicted in Utah after a jury trial of assault with a deadly weapon by one convict upon another by means of a knife (former Utah Code 76-7-11). Due to Utah's practice of destroying records after ten years, no transcript of the Utah trial exists. Defendant's briefs, both pro se and that written by his attorney, similarly cannot be located. The documents which this Court has examined include a brief prepared on behalf of the State of Utah opposing Abbott's appeal of the conviction, the opinion of the Utah Supreme Court affirming the conviction, as well as an affidavit submitted by the defendant to this court in which Abbott relates his recollection of the incident. These records elicit the following facts concerning the Utah trial.
On January 18, 1966, the defendant was serving a term of zero to five years in the Utah State Prison for the crime of writing a check on insufficient funds. He became involved in a dispute with two inmates, Kenneth Olsen and James Christensen. The latter was allegedly stabbed by Abbott and died from his wounds two weeks after the incident.
Prior to trial, at the request of the Utah prosecutor, a competency hearing was conducted in December, 1966 to determine whether Abbott was competent to stand trial. 1 Dr. Roger S. Kreiger testified that in his opinion Abbott was sane. The defendant was adjudged competent and trial proceedings commenced in April, 1967.
Abbott, testifying in his own defense, stated that Christensen was a homosexual whose advances Abbott had resisted. The defendant further claimed that he had acted in self defense.
During the trial two statements made by the defendant (allegedly in the absence of Miranda warnings), were admitted. The first statement was taken after Abbott went to the Captain's office following the stabbing. The Captain asked Abbott if the knife which he surrendered to a prison guard belonged to him. 2 Abbott answered In April, 1967, the defendant was sentenced to three to twenty years' imprisonment, to run consecutively to his earlier sentence.
affirmatively. Abbott now contends that the statement was coerced. The second statement was directed to guard Lester Clayton: "Sergeant, everyone on the block likes you, but if these guys who talk to you know Chris is dead, there will be more."
Defendant Abbott appealed his conviction to the Supreme Court of the State of Utah. He claimed that he was denied a fair trial. Abbott alleged that he was not afforded effective assistance of counsel. He claimed that the trial judge erred in permitting the prosecution to impeach Abbott's testimony by using statements made by the defendant immediately after the stabbing. He asserted that the prosecution suppressed evidence. In addition, Abbott claimed that it was improper for the prosecution to inquire whether he had offered his fellow convicts anything in exchange for their testimony. Abbott also contends that the court erred in denying his motion for dismissal of counsel. Finally, Abbott argued that the Utah Code Ann. Section 76-7-11 (Supp.1967) was unconstitutional.
Rejecting all of the claims, the Supreme Court of the State of Utah addressed itself primarily to the defendant's argument concerning the alleged violation of Miranda rights. Holding that the defendant did not have a cognizable Miranda claim, and that the other alleged errors were unsupported in the records, Utah's highest court affirmed Abbott's conviction in all respects.
Jack Henry Abbott escaped from Utah State Prison in March, 1971 and was apprehended in Colorado on April 26, 1971 after holding up a Denver bank. Abbott was charged by both state and federal authorities and entered pleas of not guilty in both cases.
The federal court determined that Abbott's competency to stand trial was questionable, and a psychiatric examination was scheduled for July 29, 1971. Dr. Edward Delehanty conducted a fifteen to twenty minute session which terminated when Abbott "stormed out of the examination room in a very aggressive and hostile manner." (Defendant's Brief, p. 3) On September 3, 1971, Dr. Delehanty testified at a court hearing that, notwithstanding Abbott's aggressive and hostile manner, he found no evidence that the defendant "is not able to understand the nature of the proceedings and to cooperate in his trial if he chose to do so." (Defendant's Brief, p. 4) A further examination of the defendant was scheduled for September 7, 1971, and Dr. Delehanty testified as to his latest findings on September 10, 1971. The doctor adhered to his prior assessment that the defendant was competent to stand trial. At this hearing, Abbott also took the stand and was asked a series of questions by the Assistant United States Attorney relating to the defendant's understanding of the charges and his ability to assist counsel. The court adjudged the defendant competent to stand trial, and found that Abbott's attorney had discussed the charges with the defendant and that Abbott understood them. The court arraigned Abbott on the bank robbery indictment and the defendant pled not guilty.
While the defendant was confined in the County Jail, he received examination and treatment for various mental disorders. Specifically, on October 11, 1971 the jail physician, Dr. Evers, prescribed valium for thirty days. The prescription was renewed for an additional ten days on November 16, 1971. (On January 5th, the prescription was again renewed for thirty days.) During the earlier part of November, Abbott appeared disoriented and suffered from hallucinations. Dr. Evers prescribed mellaril, a phenothiazene tranquilizer utilized in the management of manifestations of psychotic disorders. The Physician's Desk Reference cautions against combining mellaril with valium since the combination may potentiate the action of valium, particularly where suicidal tendencies are present. (Defendant's Brief, p. 30) Notwithstanding this pharmacological warning, Abbott received Jack Abbott was scheduled to begin his trial on December 14, 1971. On December 13th, he and his new attorney appeared before the court for the purpose of changing Abbott's plea to guilty on the count of the federal indictment. (A second federal count, as well as state charges, were dismissed.) The new attorney, Mr. Elmer Hamby, had been assigned five days earlier. The record indicates that the defendant and his attorney consulted on five occasions prior to Abbott's change of plea. At the time of the plea, counsel stated that except for his initial meeting with Abbott the latter appeared to understand the proceedings against him and to act normally. (U.S.Dist.Ct. of Colorado Civil Action No. 75 F 660 p. 4) Mr. Hamby was also convinced that his client "understood the nature, extent and consequences of the plea arrangement" and that the plea was voluntary and knowledgeable. During the allocution, Abbott was informed of and indicated that he understood the type of offense with which he was charged, the punishment which would be imposed, and the waiver of his right to a jury trial. (Defendant's Brief, p. 17) In addition, the following exchange took place:
Defendant: It is.
Court: After full consultation with your lawyer?
Defendant: Yes.
Court: Are you tendering this plea of guilty, Mr. Abbott, because you are guilty and for no other reason whatsoever.
Defendant: I am. (Defendant's Brief, p. 17)
Asked if he had any questions about the nature of the charge, the defendant responded negatively. The court ascertained that there existed a factual basis for the plea, and accepted it.
In 1977, defendant Abbott filed a motion in the United States District Court for the District of Colorado, in order to vacate his sentence pursuant to the post conviction remedies in 28 U.S.C. Section 2255. The defendant advanced three arguments in support of this motion. First, he claimed that he was incompetent to enter a guilty plea at the time the plea was entered. Second, he alleged that the court failed to comply with the allocution provisions of Rule 11 of the Federal Rules of Criminal...
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