People v. Fitzpatrick

• Decision Date: 07 June 1973
• Citation: 32 N.Y.2d 499,346 N.Y.S.2d 793,300 N.E.2d 139
• Parties: , 300 N.E.2d 139 The PEOPLE of the State of New York, Respondent, v. Martin J. FITZPATRICK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 793

346 N.Y.S.2d 793

32 N.Y.2d 499, 300 N.E.2d 139

The PEOPLE of the State of New York, Respondent, v. Martin J. FITZPATRICK, Appellant.

Court of Appeals of New York.

June 7, 1973.

Bruce J. Winick, Charles E. Williams, III, Joel M. Leifer, Hartsdale, and Barbara G. Roffwarg, New York City, for appellant.

Richard D. Enders Dist. Atty. (Daniel C. Wilson, Utica, of counsel), for respondent.

FULD, Chief Judge.

On the night of September 8, 1969, at about a quarter after nine, the defendant held up Paul DiGeorge, an attendant at a gas station in Canastota, New York, and fled with his wallet and the station's cash receipts, driving east on Route 5 in a Ford convertible. Notified of the incident, Officer Robert Mumford of the Sherill Police Department stopped the defendant's car as he was driving through Sherill. While he and Police Chief Thomas Reilly were questioning the defendant, the latter suddenly produced a pistol and shot both officers. Reilly was able to radio in that he had been shot and that his assailant's auto was heading east on Route 5; he also furnished the defendant's last name and the car's license number.

A little after ten o'clock, the defendant drove up to a trailer home, owned by Mrs. Marie DiLapi, about five miles from the scene of the shooting and, abandoning the Ford, forced her at gunpoint to drive him in her car to Syracuse. On the way, he threw a wallet out of the car--which was later found and identified as DiGeorge's--and told Mrs. DiLapi that he had shot the two Sherill policemen and would kill her if she tried 'any funny stuff.' After she dropped him off in the vicinity of Kennedy and South Salina Streets in Syracuse, she went immediately to the police.

A Check on the license number of the car in which the defendant was traveling disclosed that it belonged to a girl friend of his; that his full name was Martin Fitzpatrick and that a person by that name owned a house at 1040 Midland Avenue, not far from where he had alighted from Mrs. DiLapi's vehicle. Shortly after 8:00 A.M. on the following day, police officers surrounded that house. When a knock, an announcement that they were police officers and a telephone call from next door produced no answer, the police, acting without a warrant, opened the door--which was ajar--went into the house and began searching for the defendant. As they entered a room on the second floor, the defendant called--from a closet in which he was hiding--'Don't shoot. I give up.' The officers seized and handcuffed him, took him out into the hall, a few feet from the closet, and advised him of his rights. Questioned about the gun he had used, the defendant stated that it was on a shelf in the closet where they had found him. An immediate search of its interior uncovered a bank bag containing the gun, with six empty shell casings in the cylinder and 27 live rounds.

Officer Mumford died on September 9, 1969, the day after the shooting, and Chief Reilly four days later. The defendant was indicted for their murder in the Oneida County Court on October 6. In selecting the jury for trial, late in 1970, the district attorney challenged for cause 20 veniremen because of reservations about capital punishment--11 of whom had indicated, however, that their objection to the death penalty would not prevent them from returning a verdict of guilt. The prosecution also utilized a number of peremptory challenges to exclude other veniremen opposed to capital punishment.

At the subsequent suppression hearing, police officers testified that the Miranda warnings were given to the defendant. Sergeant Carhart stated that he 'was advised of his rights' and Lieutenant Burns declared that Carhart had given the suspect 'his rights,' adding that the defendant, when asked if he was 'sure' he understood his rights, replied in the affirmative. However, the Judge decided, this testimony did not constitute 'sufficient information' upon which he could find that 'the Miranda requirement was complied with * * * or that the defendant waived such rights.' Accordingly, he ruled the defendant's oral statements inadmissible. Nevertheless, concluding that the gun and the other items found in the closet could not be regarded, as the defense claimed, as 'fruit of the poisonous tree,' the Judge received them in evidence since, as he put it, 'proper police investigation would (in any event) have resulted in a search of that closet and (their) discovery.'

Upon the trial, the defendant was identified by DiGeorge and Mrs. DiLapi, and at least two bullets used in the killings were proved to have come from the gun found in the closet. The jury returned a verdict of guilt on December 17, 1970. A few days later, prior to the commencement of what is commonly called the 'penalty trial' (Penal Law, Consol.Laws, c. 40, § 125.30), the defendant sought an adjournment to permit a psychiatric examination and the preparation of other relevant presentence material. The motion was denied. The defendant then decided to handle the penalty trial himself in place of his attorneys. After the People had concluded their case, he declined to call any witness or offer any evidence. The jury reported, on December 23, that it agreed that the death penalty should be imposed and, following imposition of that sentence, the defendant appealed to this court as of right (CPL 450.70).

Proof of the defendant's guilt is clear and, indeed, he does not question its sufficiency. He does, however, contend, among other arguments (1) that the trial judge committed error, requiring a reversal of the conviction and a new trial, when he received in evidence the gun and other articles found in the closet and (2) that, in any event, the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, compels annulment of the death sentence imposed on the ground that, as the Eighth Amendment of the United States Constitution was construed in that case, such sentence amounts to cruel and unusual punishment.

Fruit of the Poisonous Tree

Contrary to the defendant's contention, the gun and the other items may not be deemed inadmissible in evidence as fruit of the poisonous tree, that is, as the product of what the trial judge ruled were improperly obtained statements.

There are, it is settled, exceptions to the rule that evidence is inadmissible if uncovered as a result of information obtained by impermissible conduct on the part of police officers. (See, e.g., Wong Sun v. United States, 371 U.S. 471, 489, 83 S.Ct. 407, 9 L.Ed.2d 441; Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (where the connection between the lawless conduct of the police and the discovery of the challenged evidence had 'become so attenuated as to dissipate the taint'); Silverthorne Lbr. Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (exclusionary rule has no application where government learns of the evidence 'from an independent source'); see, also, People v. Dentine, 21 N.Y.2d 700, 287 N.Y.S.2d 427, 234 N.E.2d 462; 21 N.Y.2d 971, 290 N.Y.S.2d 199, 237 N.E.2d 361; United States v. Williams, 9 Cir., 436 F.2d 1166, 1170, cert. den. 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654; Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. den. 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83.) As the Supreme Court wrote in Wong Sun v. United States, 371 U.S. 471, 487--488, 83 S.Ct. 407, 417, Supra, 'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959).'

In line with this reasoning, the courts have held that evidence obtained as a result of information derived from an unlawful search or other illegal police conduct is not inadmissible under the fruit of the poisonous tree doctrine where the normal course of police investigation would, in any case, even absent the illicit conduct, have inevitably led to such evidence. (See, e.g., United States v. Seohnlein, 4 Cir., 423 F.2d 1051, cert. den. 399 U.S. 913, 90 S.Ct. 2215, 26 L.Ed.2d 570; Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205, cert. den. 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86; People v. Regan, 30 A.D.2d 983, 294 N.Y.S.2d 154; People v. Soto, 55 Misc.2d 219, 285 N.Y.S.2d 166; see, also, Lockridge v. Superior Ct. of Los Angeles County, 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683, cert. den. 402 U.S. 910, 91 S.Ct. 1387, 28 L.Ed.2d 652; Note 43 A.L.R.3d 385, 404; Maguire, How to Unpoison the Fruit, 55 J.Crim.L.C. & P.S. 307, 313--317; but cf. United States v. Paroutian, 2 Cir., 299 F.2d 486, 489 (319 F.2d 661); Pitler, 'Fruit of the Poisonous Tree', 56 Cal.L.Rev. 579, 627--630.) In other words, as one commentator put it, the inevitable discovery factor 'permits the government to remove the taint from otherwise poisoned fruit by establishing that the unlawful act from which it resulted was not a Sine qua non of its discovery.' (Maguire, How to Unpoison the Fruit, 55 J.Crim.L.C. & P.S. 307, 313.)

In the present case, it was entirely fortuitous that the police delayed the search of the immediate area where the defendant was discovered until they had begun questioning him and, as a result, very quickly learned where the gun was located. It is quite unreal to suggest that, but for the defendant's admission, the police would not have looked for incriminating evidence in the closet where he had been hiding. The weapon employed in a robbery and a shooting of two police officers, is a prime object of any investigation and, unless thrown away, was certain to be either on or near the...