People v. Conklin
| Decision Date | 03 February 1989 |
| Citation | 537 N.Y.S.2d 695,145 A.D.2d 20 |
| Parties | PEOPLE of the State of New York, Respondent, v. Jeffrey L. CONKLIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Kevin P. Bradley, Canisteo, for appellant.
John Tunney, Bath, for respondent.
Before DILLON, P.J., and CALLAHAN, DENMAN, GREEN and LAWTON, JJ.
Defendant appeals from a judgment convicting him, after a jury trial, of criminally negligent homicide and sentencing him to one and one-third to four years imprisonment. Defendant was convicted of causing the death by suffocation of the 21-month-old daughter of his girlfriend by holding her face down in her crib. Defendant's primary contention on appeal is that the court erred in refusing to charge the jury with the responsibility of determining whether defendant's confession was "involuntarily made" (CPL 60.45), and thus to be disregarded, because it was "obtained by means of custody of the defendant in the absence of reasonable cause to believe that the defendant had committed any offense." Defendant's contention is that he was entitled to have the jury determine whether his Fourth Amendment rights were violated by police questioning. We hold that search and seizure issues are inappropriate for jury resolution and that the court properly refused to charge as requested by defendant.
The trial evidence, including the detailed oral and written statements of the defendant, established that defendant, age 19, was living with Ida May Campbell and her three children, including Elizabeth Johnson, the decedent. On July 18, 1986, Ida went to work and left the children with the baby-sitter, Hazel LaBar. Later that morning, defendant watched the children while LaBar went to the dentist. According to defendant's statements, Elizabeth got "cranky" and threw a "tantrum". Defendant grabbed her by the neck, spanked her, dropped her into her crib and held her down by the back of her neck and the small of her back until she "calmed down" and "stopped squirming". Approximately two hours later, after Campbell had returned home, defendant went to check on Elizabeth. When she didn't move, defendant summoned Campbell, who determined that the baby was blue. After unsuccessful attempts at resuscitation, the baby was taken to the hospital where she was pronounced dead.
An autopsy was performed on July 19 during which the police observed two small bruises at the base of Elizabeth's skull and a bruise at the base of her spine. That observation, together with the opinion of hospital personnel that the death was suspicious, caused police to conduct a homicide investigation. The police went to the home of defendant and Campbell later that day. They questioned Campbell and LaBar but defendant was not present. The police left a message that they would like to speak with defendant.
Defendant was driven to the police station by his father at approximately 3:30 P.M. on July 19. He was taken into a conference room, given his Miranda warnings, and questioned by officers and an Assistant District Attorney. Following the initial 30 to 40 minute interview, during which defendant denied harming the child, the police left defendant alone in the conference room "to think it over". After a 15 to 20 minute interval, questioning was resumed for approximately 10 to 15 minutes at which time defendant made a series of inculpatory statements in which he admitted suffocating the child. Thereafter, defendant's oral statements were reduced to a writing which defendant signed. The police commenced taking defendant's written statement approximately two hours after his arrival at the police station and it was completed approximately two hours after that.
Following indictment, defendant moved to suppress his statements on the grounds that he was seized without probable cause, was not given adequate warnings, and was psychologically coerced into giving the statements. After conducting a combined Huntley/Dunaway hearing, the suppression court concluded, inter alia, that there had been no Fourth Amendment violation. Specifically the court found that, in attempting to question defendant, the police left word for him to go to the police station at his convenience but made no further attempts to find or arrest him. The court found that defendant voluntarily appeared at the police station, was not taken into custody, waived his Miranda rights and consented to speak about the incident. The court further found that, after the initial interview, defendant was left alone in the conference room while officers spoke to defendant's father, who was waiting in a vehicle across from the police station. Defendant's father was offered the opportunity to speak with his son and to review the taped interview, but declined to do so. Questioning then resumed, at which point defendant admitted suffocating the child. Based on testimony establishing that, up to the point at which defendant made the admission, he was free to leave, the court concluded that nothing occurred during the questioning that converted his voluntary appearance into a custodial detention. 1
Defense counsel renewed the Fourth Amendment claim at trial, cross-examining the officers in an attempt to establish that defendant was in custody when he gave his statement. Invoking the so-called "second bite" on the issue of voluntariness provided by the interplay between CPL 710.70(3) and 60.45(2)(b)(ii), defendant requested that the trial court to instruct the jury on various aspects of voluntariness, including the instruction that defendant's statements should be disregarded if the jury found that such statements were obtained from defendant "in violation of such rights as the defendant may derive from the constitution of this state or of the United States". Defendant requested that the court charge as follows:
A statement is obtained in violation of rights derived from the constitution of this State or of the United States when it is obtained by means of custody of the defendant in the absence of reasonable cause to believe that the defendant had committed any offense * * * A defendant is in custody when a reasonable person in the defendant's position would not believe he or she is free to leave.
Defense counsel argued that "(i)t is for the jury to determine whether there was reasonable cause to believe that the Defendant committed any offense" and "whether he was in custody before he made the allegedly inculpatory statements." The court declined to so charge, but did, however, charge the jury at length, in accordance with CPL 60.45 and the pattern charge contained in 1 CJI(NY) 11.01 et seq., concerning the conventional factors bearing on voluntariness, including defendant's Miranda protections.
It was not error for the court to refuse to submit the Fourth Amendment issues to the jury. Defendants are provided a "second bite" on the issue of voluntariness by virtue of the following statutory provisions:
§ 710.70. Motion to suppress evidence; orders of suppression; effects of orders and of failure to make motion.
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3. A motion to suppress evidence made pursuant to this article is the exclusive method of challenging the admissibility of evidence upon the grounds specified in section 710.20, and a defendant who does not make such a motion before or in the course of a criminal action waives his right to judicial determination of any such contention.
Nothing contained in this article, however, precludes a defendant from attempting to establish at a trial that evidence introduced by the people of a pretrial statement made by him should be disregarded by the jury or other trier of the facts on the ground that such statement was involuntarily made within the meaning of section 60.45. Even though the issue of the admissibility of such evidence was not submitted to the court, or was determined adversely to the defendant upon motion, the defendant may adduce trial evidence and otherwise contend that the statement was involuntarily made. In the case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made.
§ 60.45. Rules of evidence; admissibility of statements of defendants.
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2. A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:
(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or
(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:
(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States.
Relying on the broad language of CPL 710.70(3), defendant contends that he was entitled to have the jury determine whether his confession was obtained in violation of his right to be free from arrest absent probable cause. We decline to adopt the statutory interpretation advanced by defendant and conclude that search and seizure issues are not within the contemplation of the provisions of CPL 710.70(3) and 60.45(2)(b)(ii). We read 60.45(2)(b)(ii) as authorizing jury consideration of only those constitutional claims traditionally associated with the determination of the voluntariness of a confession, i.e., Miranda and Fifth Amendment () claims or claims arising under analogous provisions of the State Constitution (see, People v. Graham, 55 N.Y.2d 144, 447 N.Y.S.2d 918, 432 N.E.2d 790; People v....
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