People v. Higgins

• Decision Date: 16 February 1977
• Citation: 392 N.Y.S.2d 800,89 Misc.2d 913
• Parties: The PEOPLE of the State of New York v. Tyrria HIGGINS, Defendant.
• Court: New York Supreme Court

Page 800

392 N.Y.S.2d 800

89 Misc.2d 913

The PEOPLE of the State of New York v. Tyrria HIGGINS, Defendant.

Supreme Court, Trial Term, Bronx County, Part 18.

Feb. 16, 1977.

Gerald J. Silver, New York City, for defendant.

Mario Merola, Dist. Atty. (David Griffiths, New York City, of counsel), for the People.

DONALD J. SULLIVAN, Justice:

The defendant Tyrria Higgins moves to suppress statements made to Detective John Sheridan and to Assistant District Attorney Karen Bell.

The People produced Detective John Sheridan, Assistant District Attorney Karen Bell and Lester Ferguson, a video-tape technician. The People introduced exhibit 1 in evidence, a transcript of the statement made by defendant to A.D.A. Karen Bell, and exhibit 2 in evidence, the video-tape of the interrogation of defendant by A.D.A. Karen Bell.

The court finds that Detective John Sheridan and A.D.A. Karen Bell, prior to taking the statements which are the subject of this Huntley hearing, gave the defendant his Miranda Warnings; that the defendant understood said warnings; that he knowingly and willingly waived his constitutional rights; and that he thereafter made the subject statements.

The court finds that the People have established beyond a reasonable doubt that said statements were voluntary.

While defendant has not raised the question, the court will address itself to the admissibility of the video-tape of defendant's confession taken at the police precinct. In researching the law in this area, the court was confronted with the lack of any reported cases in New York State. Apparently the paucity of legal precedent stems from the comparatively recent innovation of such electronic advances in the criminal justice system. The court is not without guidance however, as there are a number of reported cases in other jurisdictions dealing with this subject. Generally, these jurisdictions have approved of the admissibility of video-tapes primarily in recording confessions and depositions under judicially enunciated principles.

Objections to the admission of video-tape recordings in out of state jurisdictions are based primarily on constitutional and statutory grounds. Arguments that such evidence infringes on the right of self incrimination (5th Amendment); violates due process (5th Amendment); violates the protection against unreasonable search and seizure (4th Amendment); and denies the accused of the right to public trial (6th Amendment), have usually been met with uniform lack of success in such states.

When referring to video-tape evidence we mean real or demonstrative evidence. This has been defined as evidence addressed directly to the senses of the trier of the facts, Richardson on Evidence, 10th edition, p. 102, § 127.

A good description of the device was given in People v. Heading, 39 Mich.App. 126, 197 N.W.2d 325, 'Video-tape is nothing more than a motion picture synchronized with a sound recording.' Video-tape is descriptive, corroborative and physical evidence. Compliance with standard rules of evidence regarding the admission of underlying testimonial evidence, should be sufficient basis for admission of video which records the said event.

The Missouri State Court in two cases dealing with the defendant's privilege against self incrimination under the 5th Amendment upheld the use of video-taped evidence at the trial, State of Missouri v. Lusk, 452 S.W.2d 219 (1970); State of Missouri v. Hendricks, 456 S.W.2d 11 (1970). In Lusk and Hendricks, supra, the courts ruled that defendant's confession recorded on the video medium did not violate nor impair his 5th Amendment rights. The admissibility into evidence was subject only to procedural safeguards. Providing a proper foundation was laid, and assuming the confession itself was legally admissible, there was no basis to exclude such video evidence. The court indicated that the video-tape admissions of the defendant as recorded were corroborative of the testimony of the police; the such video-tape expedites the ability of the trial court in its determination to decide objections to the voluntariness of the confession; that it was equivalent to the presentation into evidence of a confession through any orthodox, mechanical medium; and that the tape stands on same footing as a sound motion picture. In a federal habeas corpus petition, the court indicated that defendant's voluntary statement recorded on video-tape was not incriminatory, that is, in violation of his 5th Amendment privilege, (Hendricks v. Swenson, 456 F.2d 503 (8 Cir., 1972)). The tape would be incriminating and in violation of his 5th Amendment rights only if the statement itself abridged his constitutional 5th Amendment rights. The reasoning of the Hendricks court, supra, p. 506 is persuasive: '. . . we suggest that a video-tape is protection for the accused. If he is hesitant, uncertain or faltering, such facts will appear. If he has been worn out by interrogation, physically abused . . ., the tape will corroborate him in ways a typewritten statement would not. Instead of denying a defendant his rights, we believe it is a modern technique to protect a defendant's rights.' The court then said: '. . . we think (tape) this no more incriminates him than the taking of still pictures or blood or urine samples.'

Other cases have admitted video-tape evidence after proper authentication and sufficient foundation has been laid, People v. Ardella, 49 Ill.2d 517, 276 N.E.2d 302 (showing performance tests where defendant charged with driving under influence of alcohol); People v. Fenelon (1973) 14 Ill.App.3d 622, 303 N.E.2d 38 (tests for drunken driving); and People v. Heading (1972) 39 Mich.App. 126, 197 N.W.2d 325 (Lineup). In People v. Ardella, supra, it was held that compliance with 5th Amendment does not require advance notice of tape recording. The court in People v. Fenelon, supra, approved of the video portion of the tape recording of the intoxication tests in the absence of prior Miranda Warnings. It held that the video-tape (excluding the audio portion) constituted only physical evidence. It was not testimonial in nature. In support of this proposition in People v. Heading, supra, the defendant's participation in a video taped lineup was recognized as an aid to the trial court in reconstructing the circumstances in which lineup took place. It was held not to involve testimony or communication by the accused in contravention of his 5th Amendment rights.

In People v. Ardella, supra, the co-ordination tests with answers of defendant were recorded on audio-video tape. The court was of the opinion that there was no infringement of defendant's 4th Amendment rights. The court stated that defendant, upon being charged with drunken driving had no justifiable expectation of privacy. Since defendant was given his Miranda Warnings, both the recordings of his voice and statements were admissible and not violative of either the 4th or 5th Amendment.

The defendant's fundamental right under the 6th Amendment to confront his witnesses at trial cannot be abridged by a video-taped lineup without the testimony of the identifying witness. The introduction of the video-tape showing identification of the defendant by an absent witness would be a denial of defendant's right to confront and cross-examine the witness at the trial. In People v. Heading, supra, the court held that the video-tape was admissible only as corroboration and supplemental to a witness' 'live' testimony.

The question may arise in future whether the video-tape is of such prejudicial nature as to infringe on defendant's due process. Certainly such issue can adequately be dealt with at the trial and if necessary the appellate courts. Their rulings should not affect the basic principle relating to the admissibility of admitting the video-tapes under prescribed guidelines in the court's inherent discretion. (See People v. Garland, 44 Mich.App. 243, 205 N.W.2d 195).

The doctrines established by other states lead me to believe that the utilization of video tape with particular reference to the areas of confessions, depositions, intoxication-coordination tests and lineups would not present any serious constitutional or statutory issue in New York State. The introduction into evidence of such device might raise some procedural questions. But none so difficult that it is beyond the capabilities of solution by the Bar and Bench. As was noted, the constitutional rights against self incrimination (5th Amendment), to confront witnesses (6th Amendment), to privacy (4th Amendment) are potentially better protected through the video-tape process.

Support for admission into evidence of video-tape can best be demonstrated by reference to the admissibility of other forms of physical and real evidence. There is a long history of authoritative New York State decisions on the admissibility into evidence of land maps (Curtiss v. Ayrault, 3 Hun. 487 (1875)); photographs (People v. Buddensieck, 103 N.Y. 487, 9 N.E. 44 (1886); Cowley v. People of State of N.Y., 83 N.Y. 464 (1881); Staisny v. Metropolitan Street R. Co., 58 App.Div. 172, 68 N.Y.S. 694, affd. 172 N.Y. 656, 65 N.E. 1122; Saporito v. New York, 14 N.Y.2d 474, 253 N.Y.S.2d 985, 202 N.E.2d 369; Delgado v. Pasternak, 22 A.D.2d 799, 254 N.Y.S.2d 131; People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308...