People v. Diaz

• Decision Date: 17 July 1980
• Citation: People v. Diaz, 430 N.Y.S.2d 310, 77 A.D.2d 523 (N.Y. App. Div. 1980)
• Parties: The PEOPLE of the State of New York, Respondent, v. Cruz DIAZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 310

430 N.Y.S.2d 310

77 A.D.2d 523

The PEOPLE of the State of New York, Respondent, v. Cruz DIAZ, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 17, 1980.

M. F. Scholl, New York City, for respondent.

D. E. Nawi, New York City, and Cruz Diaz, pro se, for defendant-appellant.

Before SANDLER, J. P., and ROSS, MARKEWICH and SILVERMAN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, rendered September 18, 1975, affirmed. We find nothing in this record from which it may be concluded that appellant received other than a painstakingly fair trial. Our dissenter argues, however, that defendant-appellant's self-inculpatory statements were improperly received in evidence. This argument is based on a claimed parallel with the teaching of Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. At the outset, we accept both the factual presentation of the evidence in this case as stated in the dissent, as well as the statement of the background of Bram in each instance, as far as it goes.

Bram, first mate of a vessel on the high seas, was accused of having murdered his captain, the latter's wife, and the second mate. Brown, a seaman, was accused of the murder, but, when the vessel put into Halifax, the local police investigated at the request of the American consul. Before being questioned by a detective, Bram was stripped and his clothing searched. Following this indignity, he was then told "Your position is rather an awkward one. I have had Brown in this office, and he made a statement that he saw you do the murder." Bram replied, "He could not have seen me; where was he?", to which the detective responded "He states he was at the wheel." Bram's comment: "Well, he could not see me from there." The detective: "Now look here, Bram, I am satisfied that you killed the captain, from all I have heard from Mr. Brown. But some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders." Bram concluded: "Well, I think, and many others on board the ship think, that Brown is the murderer; but I don't know anything about it." (The text of the speeches of each actor is transcribed from Bram, supra, at page 539, 18 S.Ct. at page 185.)

Of course, in the '90's, there had been no warning as to constitutional rights, there was no intervention of influence by any relative in our case, the defendant's mother and it is at least doubtful whether anything in Bram's equivocal statements amounted to an admission. In any event, the crux of the court's opinion in Bram is revealed as follows:

"The fact, then, is that the language of the accused, which was offered in evidence as a confession, was made use of by him as a reply to the statement of the detective that Bram's co-suspect had charged him with the crime, and, although the answer was in the form of a denial, it was doubtless offered as a confession because of an implication of guilt which it was conceived the words of the denial might be considered to mean. But the situation of the accused, and the nature of the communication made to him by the detective, necessarily overthrows any possible implication that his reply to the detective could have been the result of a purely voluntary mental action; that is to say, when all the surrounding circumstances are considered in their true relations, not only is the claim that the statement was voluntarily overthrown, but the impression is irresistably produced that it must necessarily have been the result of either hope or fear, or both, operating on the mind.

"It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other suspected person had charged him with crime, the result was to produce upon his mind the fear that, if he remained silent, it would be considered an admission of guilt, and therefore render certain his being committed for trial as the guilty person, and it cannot be conceived that the converse impression would not also have naturally arisen that, by denying, there was hope of removing the suspicion from himself. If this must have been the state of mind of one situated as was the prisoner when the confession was made, how, in reason, can it be said that the answer which he gave, and which was required by the situation, was wholly voluntary, and in no manner influenced by the force of hope or fear? To so conclude would be to deny the necessary relation of cause and effect. . . ."

Bram, supra, pages 562-3, 18 S.Ct. page 194.

What was said by the Bram court is not an abstraction, but referable to the facts in that case. In the case we review, we do not have a Bram situation of overbearing officialdom. Indeed, the factual predicate for conviction by the jury was, when considered in the light of the court's charge, a finding that the defendant-appellant was not thus overborne, but made his statement freely after his mother's appeal to him. ^*

Quite obviously, the trial court was familiar both with Bram and with CPL 60.45(2)(b)(i). This is reflected by eight solid pages of the court's charge, reflecting the possibility and so held by the jury by convicting that a defendant in the described circumstances might, instead of being overborne, freely, voluntarily and truthfully, beyond a reasonable doubt, inculpate himself.

First, the contentions of both sides are presented: that defendant was informed of his rights and voluntarily made his statement after speaking with his mother; on the other hand, that "appropriate warnings of his rights" were not given, that he was "subjected to force, coercion and undue pressure." Further, that defendant "maintains that many of his answers were suggested by the detective, and should be disregarded." The court then instructs "that a statement made to a police officer or to a District Attorney . . . is not to be considered . . . unless you are satisfied beyond a reasonable doubt that prior to any interrogation . . . the defendant was warned of his constitutional rights (detailing them)." "Further, you must be satisfied beyond a reasonable doubt that having been so advised the defendant . . . of his own choice answered the questions put to him." "Our law provides that evidence of a . . . confession . . . made by a defendant . . . may not be received in evidence . . . if such statement was involuntarily made." "A confession . . . is involuntarily made when it is obtained . . . by means of improper conduct or undue pressure which impaired a defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement." (Instruction repeated.)

"(I)t is not unlawful for . . . an Assistant District Attorney merely to persistently or repetitively question a person . . . or to confront one person with another in order to ascertain the facts . . . as long as such questioning does not exceed the bounds of propriety or amount to undue pressure. Whether the questioning in this case from the evidence that you have heard exceeded those bounds is for you to determine from the totality of all the circumstances surrounding the questioning of the defendant in the 13th Precinct on the morning of April 2, 1974. It will be for you to determine whether or not the questioning of the police officers exceeded the . . . bounds of propriety or undue pressure or what amounted to undue pressure. If you find that any of the alleged statements made by the defendant after being taken into custody . . . were not made of the defendant's own free choice under the circumstances, or if you have a reasonable doubt as to whether any statement was voluntarily made under the law as I have instructed you, you must disregard that statement and give it no weight whatsoever, as it would have no binding effect upon the defendant. This is so even though you may believe that the alleged statement that was made is, in fact, true." "In this connection, you have the right to examine the nature and quality of the statements to which I have referred (the transcripts)." "You may determine to accept as true, in whole or in part, any and all of the alleged statements, or to put aside any and all, in whole or in part . . . In summary, if you have a reasonable doubt that the warnings to which I have referred were given or a reasonable doubt that the statements attributed to the defendant were voluntarily made, then you should not consider such . . . statements in your determination of the guilt or innocence of the defendant as to any of the crimes being submitted for your consideration."

The court's instructions were characterized by defense counsel as "eminently fair." In the face of this, and the single telling fact that, until he had talked with his mother, defendant-appellant had adhered adamantly to his disclaimer of knowledge about the crime, it cannot be said that there was "a substantial risk that the defendant might (have) falsely incriminate(d) himself" or that anything said or done violated his constitutional rights. One last note: no case we have seen says in so many words that it is a constitutional imperative that a suspect not be told that another participant has accused him of unlawful conduct.

All concur herein and in the following concurring memorandum by SILVERMAN, J., except SANDLER, J. P., who dissents in a memorandum as follows.

SILVERMAN, Justice (concurring).

CPL § 60.45 subd. 2 provides in part as follows:

2. A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:

(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...