People v. Bodner

• Decision Date: 10 July 1980
• Citation: 430 N.Y.S.2d 433,75 A.D.2d 440
• Parties: PEOPLE of the State of New York, Respondent, v. Dwayne BODNER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 433

430 N.Y.S.2d 433

75 A.D.2d 440

PEOPLE of the State of New York, Respondent, v. Dwayne BODNER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1980.

Charles Avery, Auburn, for appellant.

Ross M. Tisci, Auburn (David J. O'Connor, of counsel), for respondent.

Before SIMONS, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.

HANCOCK, Justice.

At 5:01 p. m. on April 25, 1978 in the Auburn police station, Dwayne Bodner, a 17 year old boy with an I.Q. of 63 and a mental age of 8 or 9, signed a written confession in the presence of his father in which he admitted setting four separate fires. After a jury trial, where the confession and substantial corroborating evidence of the fires were introduced against him, Dwayne was convicted of four counts of arson, third degree. His appeal depends solely on whether the written confession and the testimony of the investigating police officer, Detective Malandruccolo, concerning Dwayne's inculpatory conduct and statements made prior to the confession were properly received in evidence. We relate briefly the significant facts preceding and surrounding Dwayne's confession. ¹

During the three day period from April 22 to April 24, 1978, four fires occurred in sheds or garages in Auburn all of which bore evidence of arson. On April 25, 1978 at about 2:00 p. m., Dwayne walked into the police station, announced that he had been present when his cousin Jeffrey Knowlton had set the four fires and, according to Detective Malandruccolo, said, "I'll take you and show you where (he) started the fires, and how (he) started them." Accordingly, Detective Malandruccolo, accompanied by Dwayne and another officer, Detective Cioffa, proceeded under Dwayne's guidance in an unmarked police car to the scenes of the four fires where Dwayne described how his cousin had lit each one. In his testimony, Detective Malandruccolo emphasized that Dwayne "did all the talking," and that he was not questioned. Upon returning to the police station and after suggesting to Dwayne that he go home, Detective Malandruccolo immediately summoned Jeffrey Knowlton and his mother to police headquarters. After interviewing the two, he was "convinced that Jeffrey didn't set the fires * * * so (he) called at this time Dwayne Bodner." He spoke with one of Dwayne's parents and requested that one or both parents bring Dwayne to the police station. At trial, Detective Malandruccolo described what occurred upon Dwayne's arrival at the station with his father at 4:45 p. m.: "I told Dwayne * * *, 'We checked out your cousin's alibi, and he was telling us the truth.' And, Dwayne said, 'I did, I lied to you.' * * * At this point in time, Detective Festa got a sheet of paper which we call the Miranda warnings." ² After Dwayne and his father signed the waiver of rights form at 4:50 p. m., Dwayne's oral confession was reduced to writing and signed by him and his father at 5:01 p. m. Although Francis Bodner, Dwayne's father, testified that when he arrived at the police station Dwayne was already there, he did not deny that he was present when the warnings were given and the statement taken, that both were read aloud to them, or that he and Dwayne signed both documents. In his formal statement, Dwayne described how he set the first fire by lighting tomato sticks and some paper with a match and said: "I then got on my bike and went home and I turned on my police fire monitor. I then heard the Police radio and this lady said there was a fire at 196 Seymour Street. I then heard the fire trucks and I then went to 196 Seymour Street. I then watched the firemen." Each of the fires is similarly described. At the Huntley hearing and at trial defendant introduced uncontradicted proof the records and testimony of two psychiatrists and a school psychologist pertaining to Dwayne's limited intellect. Detective Malandruccolo acknowledged that he had been "on a first name basis" with Dwayne for four or five years and was aware of Dwayne's mental deficiency.

Defendant does not seriously question the conduct of the police in obtaining his assent to the formal written document; indeed, the evidence is uncontradicted that the police employed no coercive or improper tactics and gave completely adequate Miranda warnings (see Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Dwayne and his father, prior to signing the written confession, both willingly signed the waiver of rights form. The attack upon the court's ruling in admitting the confession and the testimony of Dwayne's statement and conduct preceding it rests on three other grounds: ³

1. that the actions of the police in their contacts with Dwayne prior to giving him the Miranda warnings and taking the formal confession amounted to improper custodial interrogation so that testimony of any incriminating conduct or statements by Dwayne during such contacts were inadmissible;

2. that, if this court finds that such conduct and statements were the result of improper custodial interrogation and inadmissible, the subsequent giving of proper Miranda warnings before reducing the statements to a formal written confession was ineffective to render the formal confession voluntary and admissible; and

3. that based on the proof of Dwayne's lack of intellectual capacity, the court should have ruled as a matter of law that he was incapable of understanding his legal rights or effecting a voluntary waiver thereof and should, for that reason alone, have excluded the written confession.

I.

Inasmuch as no question is raised concerning the police procedures in actually taking defendant's formal confession, a challenge to its admissibility must depend on whether it was so inextricably intertwined with improper police conduct occurring prior to the giving of the Miranda warnings that the warnings were insufficient to protect defendant's rights. In any analysis of these earlier contacts between defendant and police, the focus must be on whether the incriminating actions and statements occurring prior to the Miranda warnings were the product of custodial interrogation, i. e., whether Dwayne was both under interrogation and in custody so that the procedural safeguards outlined in Miranda were required (see Rhode Island v. Innis, --- U.S. ----, 100 S.Ct. 1682, 64 L.Ed.2d 297). A statement "given freely and voluntarily without any compelling influence is, of course, admissible in evidence" (Miranda v. State of Arizona, supra, 384 U.S. p. 478, 86 S.Ct. p. 1630). By the same token, a statement given in reply to police questioning may be admissible if given when the suspect is not in custody (see People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. den. 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255).

The first issue in our two-step analysis of whether Dwayne's responses were the products of custodial interrogation is whether the pre-warning police conduct amounted to interrogation. It is now settled that words or actions on the part of the police which are the functional equivalent of formal questioning may give rise to the requirement of the Miranda safeguards. As recently explained by the Supreme Court, "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response" (Rhode Island v. Innis, supra, --- U.S. at p. ----, 100 S.Ct. at pp. 1689-90 (footnotes omitted) (emphasis in original).

Here, we must determine whether the police should have known that their actions toward Dwayne during the trip to the scenes of the fires and again upon his return to headquarters prior to the giving of the Miranda warnings were likely to elicit incriminating responses. We must also determine in the light of People v. Yukl, supra, and People v. Rodney P. (Anonymous), supra, whether the circumstances surrounding the trip and his return to headquarters led Dwayne reasonably to conclude that he was in custody.

Applying these criteria, we scrutinize first the period from Dwayne's appearance at headquarters until he was told to go home by Detective Malandruccolo. Arguably, much or most of the police actions in permitting or tacitly encouraging a simple minded boy to point out and describe the details of the fires would constitute interrogation under the Innis test as actions likely to elicit incriminating responses. The police knew Dwayne; they knew of his mental deficiencies; and as trained investigators, they must have known that from his very first statement about his knowledge of and presence at the fires, Dwayne was incriminating himself without knowing it either as a principal or an accomplice. We need not decide, however, how much if any of such police conduct amounted to interrogation, because there is insufficient evidence that Dwayne was in custody during this period. The unrefuted testimony is that Dwayne's appearance at the police...