People v. Eckhardt

• Decision Date: 22 May 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>BRUCE W. ECKHARDT, Appellant.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 860

761 N.Y.S.2d 338

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.BRUCE W. ECKHARDT, Appellant.

Decided May 22, 2003.

Mercure, Peters, Carpinello and Rose, JJ., concur.

Cardona, P.J.

Defendant was charged in an eight-count indictment with murder in the first degree (three counts), murder in the second degree (three counts), kidnapping in the first degree and burglary in the second degree, arising from the disappearance and subsequent killing of his estranged girlfriend, Donna Evans, a resident of the Town of Westford, Otsego County. After an extensive search, Evans's body was discovered in Pennsylvania approximately 1½ years after she was first reported missing. From the forensic evidence, it appeared likely that Evans died from blunt force trauma. Following a jury trial, defendant was convicted of one count of murder in the second degree and sentenced to an indeterminate prison term of 25 years to life.

Defendant argues that County Court erred in suppressing only those statements made after his arrest on December 16, 1999, following his request for an attorney. He contends that his indelible right to counsel attached at an earlier time, namely, after his retained attorney, William Schebaum, advised the police in mid-July or early August 1998 that he represented defendant in connection with the disappearance of Evans.

A defendant's state constitutional right to counsel attaches indelibly in two situations. "First, it arises when formal judicial proceedings begin, whether or not the defendant has actually retained or requested a lawyer. Second, the right to counsel attaches when an uncharged individual `has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter'" (People v Ramos, 99 NY2d 27, 32-33 [2002] [citations omitted], quoting People v West, 81 NY2d 370, 373-374 [1993]; see People v Johnson, 303 AD2d 903, 904-905 [2003]). Here, defendant argues the second situation premised upon his retention of Schebaum in July 1998. At the suppression hearing, Schebaum testified that defendant retained him in July 1998 in connection with two family offense petitions involving defendant and Evans. Schebaum indicated that, prior to September 1998, he contacted the State Police, Troop C, to speak to members of the State Police who had informed defendant that they wanted to talk to him about Evans. Schebaum also wanted to make arrangements for defendant to remove his belongings from the residence that he had occupied with Evans. He first called Troop C in the City of Oneonta, Otsego County, however, he was referred to a different troop upstate because defendant was residing in that region. Schebaum had no recollection of what troop he called, or when or to whom he spoke, except that it did not involve Troop C. He testified that he had no recollection of saying anything to the State Police relating to Evans's disappearance, or his representation of defendant in that regard. He did remember indicating that if they wanted to speak to him, such could be arranged.

Defendant also argues that the State Police manipulated him into speaking in the absence of Schebaum on August 5, 1998. On that date, State Police Senior Investigator Gary Gelinger testified that he and another investigator met with defendant in the Village of Keeseville, Clinton County. They informed him that they were investigating Evans's disappearance and asked defendant, among other things, if he would accompany them to the Keeseville station. Defendant stated that he was not going to be taken into custody and "maybe he should call an attorney." When Gelinger told defendant that he was not being accused of anything and showed him a missing person teletype, he answered their questions. Gelinger testified that defendant never expressed a desire to stop speaking with them or to consult an attorney. The interview ended and the police left.

Based upon the foregoing evidence, we cannot say that County Court erred by refusing to suppress defendant's oral statements made prior to December 16, 1999. The evidence does not demonstrate that the police knew that defendant had requested or retained an attorney to represent him in connection with the disappearance of Evans. Accordingly, we find that defendant's state constitutional right to counsel was not violated (see People v Ramos, 99 NY2d 27, 32-33 [2002], supra; People v West, 81 NY2d 370, 373-374 [1993], supra; People v Johnson, supra at 905).

Next, we address defendant's contention that the physical evidence retrieved during warrantless searches of the residence he shared with Evans conducted on July 31, 1998 and August 2 and 3, 1998, should have been suppressed. Evans was first reported missing on July 31, 1998 by a realtor and friend, Pat Ryan. At the suppression hearing, State Trooper Paul Bowers testified that he met Ryan at Evans's residence in the Town of Westford, Otsego County on the afternoon of July 31, 1998. He ascertained that Evans and defendant had resided at that location. Ryan stated that she represented the owner of the house, had keys, and checked it on occasion. She indicated that she had not talked to Evans since July 14, 1998 and, at that time, she sounded upset. Ryan reported that she entered the house earlier that week looking for Evans. At that time, she tried to use the phone but heard no dial tone. She also observed Evans's locked car in a basement garage packed with various boxes, suggesting that Evans was moving. Ryan was concerned about Evans's welfare because Evans was depressed and had problems with her boyfriend (defendant) against whom she had an order of protection. Of additional concern was the unusual fact that Evans's cat, of which she was very protective, had been left outdoors unattended.

After this conversation, Ryan admitted Bowers into the house. Bowers stated that he confirmed there was no dial tone on the phone and observed that the garbage in the trash receptacle had mold growing on it. He also noticed that Evans's car had been packed. After updating his supervisor, Bowers reentered the house and went upstairs with Ryan. He noticed a newspaper which appeared unread. He removed medications from Evans's bedroom. Bowers testified that he entered the house to obtain information on Evans's whereabouts. In the den, he looked through various papers seeking information that would assist in locating Evans. In doing so, Bowers indicated that he found, among other things, papers from a car rental company.^[1] He did not find any signs of forced entry, struggle or abduction.

The State Police, who had now been advised that Evans had made two suicide attempts, returned to her house on August 2, 1998 and again searched for her. They took photographs to document the condition of the house, however, removed nothing. They searched the area outside with canine units. On August 3, 1998, the ground search continued and an air search commenced. The State Police returned to the residence accompanied by Evans's daughter, Penny Briggs. Briggs signed a consent permitting the officers to search the residence and accompanied them in the hope that she might see something to help locate her mother. She pointed out her mother's eyeglasses on the living room coffee table. The officers photographed the residence again and, as on August 2, 1998, removed nothing. State Police Investigator Steven Anderson from the forensic investigation unit noticed a newspaper on the kitchen table dated July 16, 1998. Upon examination of the two doors which provided entry into the house through the basement, he discovered fresh pry marks. He noticed that Evans's bed was unmade and there were unknown stains on the linens and mattress. Outside the house he observed that the cover of a telephone pedestal box was ajar and, upon inspection, determined that a wire had been disconnected. He also discovered that unlike the other utility poles along the road, the lightbulb was missing from the utility pole in front of the house. In Evans's upstairs bedroom, Anderson noted that the mattress pad had been pulled away from the head of the bed, the fitted sheet was missing and there were no bed pillows. Briggs indicated that her mother would never leave the bedroom in that condition. Thereafter, having decided that there was evidence indicating foul play, the State Police obtained a search warrant and executed it on August 5, 1998.

Contrary to defendant's argument, we find that the warrantless entries into the residence on July 31, 1998 and August 2 and 3, 1998, were lawful under the emergency exception to the 4th Amendment's warrant requirement. The emergency exception applies when the three-prong test established in People v Mitchell (39 NY2d 173 [1976], cert denied 426 US 953 [1976]) is satisfied. Under that test, the police must first "have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property" (id. at 177). Second, "[t]he search must not be primarily motivated by intent to arrest and seize evidence" (id.). Third, "[t]here must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched" (id. at 177-178; see People v Molnar, 98 NY2d 328, 332 n 2 [2002]; People v Greenleaf, 222 AD2d 838, 839 ...