People v. Donovon

• Decision Date: 01 April 1985
• Citation: 107 A.D.2d 433,487 N.Y.S.2d 345
• Parties: The PEOPLE, etc., Respondent, v. William DONOVON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 345

487 N.Y.S.2d 345

107 A.D.2d 433

The PEOPLE, etc., Respondent, v. William DONOVON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 1, 1985.

Manuel Nelson Zapata, New York City (Abraham Abramovsky, New York City, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, Asst. Dist. Atty., Commack, of counsel), for respondent.

Before MOLLEN, P.J., and BRACKEN, O'CONNOR and NIEHOFF, JJ.

NIEHOFF, Justice.

On July 25, 1979 James (Jimmy) Donovon, the defendant's brother, disappeared from his home. On September 4, 1979, Jimmy's totally decomposed, nude body was found chained to a tree in a wooded area in North Shirley, New York, not far from his home. Death was caused by exposure, exhaustion and dehydration. Thereafter, defendant confessed that he had chained Jimmy to the tree and had left Jimmy to die in the woods. After trial, defendant was convicted of murder in the second degree and was sentenced to a prison term of 20 years to life.

In seeking a reversal of his conviction defendant argues that (1) his right to counsel was violated both before and after his arrest when he was questioned in the absence of counsel who was representing him in a pending unrelated case; (2) the prosecution failed to meet its burden of proving beyond a reasonable doubt the voluntariness of his confessions as dictated by Federal and New York law; (3) he did not have the mental capacity to knowingly, freely and voluntarily decide to accompany the police to the station house where he confessed; and (4) he was seized without probable cause.

We are satisfied that although defendant may suffer from certain mental deficiencies, the record establishes that he had the mental capacity to knowingly, freely and voluntarily decide to accompany the police to the station house and that it supports the hearing court's determination that the People sustained their burden of proving the voluntariness of defendant's confessions, as well as its finding that defendant's confessions did not result from an illegal detention on less than probable cause. We do not believe that we need spend any further time on those issues. But the right to counsel issue does merit discussion. As will be demonstrated infra, the factual record made by defendant on which we must decide the issue is wholly insufficient to support his assertion that his right to counsel was violated when he admitted to the police that he was responsible for the death of his younger brother.

THE FACTS

At about 6:30 P.M. on July 25, 1979, Jimmy Donovon left his house in North Shirley, Long Island, riding his bicycle. About 7:00 P.M. that evening the defendant William Donovon, Jimmy Donovon's older brother, left the family residence driving a stationwagon. As defendant approached a local delicatessen he noticed his brother, stopped the car, and asked Jimmy if he wanted a ride. Jimmy entered the vehicle and his bicycle was placed in the rear of Around midnight that night, defendant went back to the scene to see how Jimmy was doing. When he came upon his brother, Jimmy looked like he was sleeping and he did not wake in response to defendant's call. Defendant decided to abandon Jimmy although he knew he might die.

the wagon. While riding in the car Jimmy started to "bug" the defendant about $100 that defendant owed him and, although defendant indicated that he would not repay the money immediately because he was out of work, Jimmy persisted in requesting payment. As the two boys approached a wooded area, defendant decided to punish Jimmy for insisting upon repayment of the $100. Toward that end, he lured Jimmy out of the car by telling him that he found some bike parts in the woods on a previous occasion. Defendant removed Jimmy's bicycle from the vehicle under the pretense of using it to determine whether the bicycle parts were usable. When they had walked deeper into the woods, defendant dropped the bike on the ground, removed the chain and lock from the bicycle, pushed his brother against the tree, threw the chain around him and locked it. When Jimmy realized that defendant was not going to release him, the youngster threatened to tell their mother about the incident. Hearing that, defendant went back and stripped Jimmy of his clothing so that if he were found by somebody it would appear that he had been raped.

About one week later, defendant returned to the scene and observed that his younger brother smelled and that there were flies all over him. Several weeks later, the defendant returned and he described Jimmy's body as then being black, with bugs crawling all over his face.

On September 4, 1979, the body was discovered. After the body had been tentatively identified as Jimmy Donovon, the investigating officer, Detective Anthony B. Palumbo, proceeded to the Donovon household and spoke to a number of the family members, including the defendant. Thereafter, on September 13, 1979, Detectives Palumbo and Donahue arranged to meet with the defendant in order to search various areas of the woods. Defendant was not home when they arrived, so they met with him the following morning.

When the officers asked defendant if he knew where his brother's body had been found, he responded in the affirmative and proceeded to direct the officers to the correct location. After giving two different versions of how he knew the location, defendant was again asked how he knew the area and he responded, "I just know", adding "I had nothing to do with my brother's murder * * * and I want to take a polygraph right now to prove it to you". When defendant insisted that he wished to undergo a polygraph examination in spite of the officers' assurance that it was not necessary, the officers advised him of hisMiranda warnings and they all went down to police headquarters.

That afternoon a polygraph test was administered by Officer Marilyn Schwartz. During the course of the examination, the investigating detectives were informed that defendant was being deceptive with respect to a number of key questions. Following further discussions, the defendant admitted his complicity and, subsequently, he confessed orally and in writing.

Defendant moved to suppress his statements alleging, inter alia, that the "defendant was not properly advised of his constitutional right to counsel and the statements that he made were obtained in violation of that right". No claim was made in Criminal Term that suppression of defendant's confessions was mandated because they were obtained in the absence of counsel who was representing him on an unrelated pending charge.

THE RIGHT TO COUNSEL ARGUMENT RAISED ON THIS APPEAL

On this appeal, defendant raises an issue not raised at his suppression hearing, i.e., that his right to counsel under the Federal and State Constitutions was violated both before and after his arrest when he was questioned in the absence of counsel he had

on a pending unrelated case. Defendant claims that although he was arrested for murder on September 14, 1979 and was not represented on such charge at the time he confessed, he had been arrested previously by the Suffolk County Police Department on a burglary charge on June 16 of that same year and was still being represented by counsel on that charge. Defendant goes on to state that because the same police officer (Marilyn Schwartz) had administered polygraph examinations on both occasions, the Suffolk County Police Department must be presumed to have had actual knowledge of his prior arrest. Based upon the rule which was proclaimed in People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, decided after defendant's trial had been completed, defendant contends that his confessions were obtained in violation of his right to counsel and must be suppressed.

ANALYSIS OF THE LAW

Our Court of Appeals has ruled that "once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel" (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537). In People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, the Court of Appeals extended the Arthur rule by declaring that if a defendant who is in custody is represented by an attorney on any pending criminal charge, including one unrelated to the matter under investigation, he cannot effectively waive his right to counsel without counsel being present. In the Rogers case, the defendant had informed the police that he had an attorney on the unrelated charge but that he was willing to speak in the absence of an attorney. Thus, that case was one wherein the record revealed that the police had actual knowledge of the representation on the unrelated charge. In People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, supra, the Court of Appeals further extended the right to counsel rule by announcing that in certain circumstances the police would be charged with constructive notice of representation on an unrelated charge. In that case the interrogating officer had actual knowledge of the fact that the suspect he was questioning had been arrested by the same law enforcement agency nine days earlier on an unrelated arson charge. The holding of the case is summed up in these words:

"[T]he interrogating detectives here, with actual knowledge of the outstanding arson charge against defendant, were under an obligation to inquire whether defendant was represented by an attorney on that charge. Having failed to make such inquiry, the officers were chargeable with what such an inquiry would have disclosed--namely, that defendant did have an attorney acting on his behalf. With such knowledge they were foreclosed either from questioning defendant or from accepting his waiver of counsel's assistance unless his attorney was then present" (People v. Bartolomeo, 53 N.Y.2d 225, 231-232, 440...