People v. Harris

• Decision Date: 16 November 1982
• Parties: , 442 N.E.2d 1205, 8 Media L. Rep. 2532 The PEOPLE of the State of New York, Respondent, v. Jean S. HARRIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 694

456 N.Y.S.2d 694

57 N.Y.2d 335, 442 N.E.2d 1205, 8

Media L. Rep. 2532

The PEOPLE of the State of New York, Respondent, v. Jean S. HARRIS, Appellant.

Court of Appeals of New York.

Nov. 16, 1982.

Herald Price Fahringer and Paul J. Cambria, Buffalo, for appellant.

Carl A. Vergari, Dist. Atty. (Anthony Joseph Servino, Gerald D. Reilly and Richard E. Weill, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Defendant, Jean Harris, was convicted, following a jury trial, of murder in the second degree and criminal possession of a weapon in the second and third degrees. This appeal presents for our consideration several purported errors occurring during the course of that trial, which defendant urges mandate reversal of the judgment of conviction. Inasmuch as our resolution of these issues leads to the conclusion that reversible error was not committed, there should be an affirmance, 84 A.D.2d 63, 445 N.Y.S.2d 520.

Defendant's trial for murder arose out of the shooting death of Dr. Herman Tarnower in his home on March 10, 1980. The People's case proceeded on the theory that Mrs. Harris, who had been Dr. Tarnower's paramour and companion for nearly 14 years, went to his home on the evening of the shooting and, acting out of jealous rage over the doctor's relationship with a younger woman, deliberately shot and killed him. One of the prosecution's witnesses, Dr. Tarnower's house manager, testified to the difficulties that had resulted from the doctor's relationships with the two women. Mrs. Harris's oral statements, testified to by the police officers who were investigating the shooting, were also relied upon as evidence of her motivation in going to the Tarnower estate on the evening of the shooting. The prosecution also utilized the so-called "Scarsdale letter", written by Mrs. Harris to the doctor over the weekend prior to his death, as strong evidence of Mrs. Harris's state of mind. In this letter, which contained several unflattering references to the younger woman in Dr. Tarnower's life, Mrs. Harris described her feelings of anguish and rejection over the doctor's apparent preference for this younger woman.

The defense theory was that Mrs. Harris, physically agitated by the lack of medication she had been taking for some time and suffering from recent failures and disappointments in her professional life, had determined that she wanted to end her life. Intending to see Dr. Tarnower once more before she died, Mrs. Harris drove to his home on March 10, hoping only to speak with him for a few moments. She entered the doctor's home and went into his bedroom, where she found him sleeping. Mrs. Harris was unable to rouse the doctor in order to have a conversation with him. Apparently upset by his lack of responsiveness and the presence of the belongings of the other woman in the bathroom, Mrs. Harris decided to kill herself there in the doctor's bedroom. According to Mrs. Harris, as she attempted to carry out her desire, the doctor, who had by now awakened, tried to prevent her from shooting herself. Several struggles ensued, during which Mrs. Harris's discharged, shooting Dr. Tarnower and inflicting four gunshot wounds from which he died. Evidence concerning Mrs. Harris's version of these events and her state of mind on the night of the shooting and previously thereto was presented larg through the testimony of Mrs. Harris herself. The defense also relied upon a will and certain letters, written by Mrs. Harris just prior to her departure for the Tarnower estate on March 10, to demonstrate her belief that she would never return to her home, because she intended to end her life. In addition, the defense offered a number of witnesses who testified that Mrs. Harris had indeed been distraught over recent events occurring in connection with her position as headmistress of the Madeira School.

Thus, the major and, indeed, critical issue at trial was whether, as the prosecution contended, defendant had deliberately shot Dr. Tarnower, intending to kill him, or, as the defense urged, the shooting had been accidental. This question was resolved by the jury in favor of the prosecution, and the legal sufficiency of the evidence upon which the verdict was based is not challenged on this appeal. Defendant claims, however, that numerous errors infected both pretrial proceedings and the trial itself, which operated to deprive her of a fair trial. We deal with these contentions separately below and engage in further discussion of the evidence in this case only insofar as it relates to the specific issues raised by defendant.

I

On the night of her arrest at the Tarnower residence, defendant made a statement over the telephone to her attorney. She contends that the introduction into evidence of that statement, testified to by a police officer who overheard it, violated her right to counsel under the Constitution of this State. It appears that Mrs. Harris, having been read her Miranda rights several times, having waived those rights and made statements to the police officers who were investigating the shooting, was thereafter asked if she would like to make a telephone call. Mrs. Harris responded that she would like to call a lawyer friend. After an attempt to make this call at a nearby telephone was unsuccessful, one of the officers, Lieutenant Flick, went into the house manager's bedroom to place call for Mrs. Harris. When the lieutenant reached Mrs. Harris's party, he left the bedroom to so inform her. Officer Tamilio, at Lieutenant Flick's request, assisted Mrs. Harris to the bedroom. When they entered the room, the house manager's husband was already there, standing a few feet from the telephone. Immediately upon picking up the telephone, Mrs. Harris made the statement: "Oh, my God, I think I've killed Hy". Its admission into evidence is now challenged.

It is clear that, at the time Mrs. Harris made this statement, her right to counsel had attached by virtue of her request to speak with an attorney (People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360). Once the right to counsel had been invoked, no further questioning of Mrs. Harris would have been permissible, unless she had affirmatively waived her rights in the presence of her attorney (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894). Notwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously. In order for such statements to be characterized as spontaneous, it must "be shown that they were in no way the product of an 'interrogation environment', the result of 'express questioning or its functional equivalent' " (People v. Stoesser, 53 N.Y.2d 648, 650, 438 N.Y.S.2d 990, 421 N.E.2d 110).

On the record before us, it is clear that no questioning of Mrs. Harris occurred after she invoked her right to counsel. The statement was neither induced, provoked nor encouraged by the actions of the police officers (see People v. Rivers, 56 N.Y.2d 476, 453 N.Y.S.2d 156, 438 N.E.2d 862), who had been entirely solicitous of Mrs. Harris's request to speak with a lawyer and had scrupulously honored her rights in this regard (cf. People v. Grimaldi, 52 N.Y.2d 611, 439 N.Y.S.2d 833, 422 N.E.2d 493). There is nothing in the record to indicate that Officer Tamilio endeavored, by subtle maneuvering or otherwise, to overhear Mrs. Harris's conversation with her attorney. Indeed, the record reflects that this officer, having assisted Mrs. Harris to the telephone, was backing out of the room when he inadvertently overheard the statement. It appears, therefore, that the officer had no opportunity to remove himself from earshot before Mrs. Harris made the damaging statement. Thus, we not presented with a situation in which the police have failed to respect a defendant's right to consult privately with an attorney. Under the circumstances of this case, we conclude that no violation of defendant's right to counsel occurred.

Although we hold today that a statement properly characterized as spontaneous is no less so simply because it was made to an attorney, a further aspect of the admissibility of such statements should be considered. Given that the communication received in evidence was made to an attorney, the attorney-client privilege is implicated, in addition to the right to counsel. This privilege protects those communications made by a defendant to an attorney that are intended to be confidential (People v. Buchanan, 145 N.Y. 1, 39 N.E. 846; Baumann v. Steingester, 213 N.Y. 328, 107 N.E. 578). It cannot be said, on the facts of this case, that Mrs. Harris, in speaking over the telephone to a lawyer in the known presence of both a police officer and the house manager's husband, intended this communication to be confidential. ¹ Generally, communications made in the presence of third parties, whose presence is known to the defendant, are not privileged from disclosure (see Richardson, Evidence [10th ed], § 413; 8 Wigmore, Evidence [McNaughton rev], § 2311). We see no reason to depart from this general rule simply because one of those parties present was a police officer, who, as has been noted, did nothing to purposely overhear the conversation or conceal his presence from defendant. ² Thus, we conclude that defendant's attorney-client privilege was not violated by the officer's testimony regarding this communication and that the testimony was properly admitted by the trial court.

II

The next issue to be considered is whehter defendant was denied a fair trial by the prosecution's use of cert evidence in rebuttal. On direct examination, Mrs. Harris testified that, on the morning of March 10, she called Dr. Tarnower at his office in the Scarsdale Medical Center from her private telephone. Mrs. Harris stated that she and the doctor spoke of...