People v. Knapp
| Citation | 441 N.E.2d 1057,455 N.Y.S.2d 539,57 N.Y.2d 161 |
| Parties | , 441 N.E.2d 1057 The PEOPLE of the State of New York, Respondent, v. Ricky A. KNAPP, Appellant. |
| Decision Date | 12 October 1982 |
| Court | New York Court of Appeals |
Incriminating statements made by defendant to the police after they had been informed that he had an attorney, as well as physical evidence thereafter seized from his automobile, must be suppressed as obtained in violation of his State constitutional right to counsel. The erroneous admission of this evidence cannot be regarded as harmless, nor can it be concluded on this record that the evidence was admissible on any theory of an emergency exception to the right to counsel rule as now advanced by the dissenters.
Linda Jill Velzy, an 18-year-old student attending the State University College of Arts and Sciences at Oneonta, was last seen alive at approximately 6:00 p.m. on Friday, December 9, 1977. She had just finished visiting several young women who were seeking another roommate to share their apartment. On leaving she told them that she would walk back to the college campus or perhaps hitch a ride. She was reported missing by her roommate the following day. An intensive search was begun and carried out as a missing person investigation. The New York State Police, the Oneonta city police and the college campus security guards joined forces, co-ordinating their efforts and establishing a single command post in the Municipal Building on Main Street in the City of Oneonta. A search was made of the surrounding countryside and woods which included the use of helicopters and bloodhounds. The police interviewed and questioned over a hundred people, including defendant.
When he was questioned defendant informed the investigating officers, Detective Angellotti of the Oneonta police and Investigator Dabreau of the State Police, of his whereabouts on the evening of December 9 and denied any knowledge of the Velzy disappearance. During the course of this conversation, at the request of the officers, defendant agreed to submit to a polygraph examination. police thereafter from time to time continued to question defendant and communicated with his family.
Defendant at the time was under indictment returned by the November, 1977 Grand Jury in which he was charged with sodomy in the first degree and unlawful imprisonment in the first degree. He had been arraigned on these charges on November 9, 1977 and at that time had appeared with his attorney, John H. Owen, Otsego County Public Defender, although the latter had not then been formally appointed to represent him. Defendant again appeared on this indictment before the Otsego County Court on December 12, 1977 on an application to relieve the Public Defender and to permit defendant to retain counsel of his own choosing. The court granted defendant two weeks to obtain an attorney and adjourned the matter to December 28, 1977.
As a consequence of the earlier police request that defendant take a polygraph examination, he contacted attorney Owen, who advised him not to submit to the test. The police continued questioning of defendant on December 12, 13 and 15, until on December 15 or 16, attorney Owen telephoned Detective Angellotti, informed him that he had advised his client not to take the polygraph test, and directed that the police either arrest defendant or cease their harassing questioning of him.
Although direct attempts to question defendant ended in compliance with Owen's demand and were not resumed until after defendant's subsequent arrest, later that month members of the consolidated investigating team arranged to question defendant indirectly through an informer named Arthur Hitt. During the course of the missing person investigation Hitt's attorney had approached the State Police indicating that his client possessed certain information with respect to the Velzy matter. Hitt, the owner of a logging site, for whom defendant occasionally worked, faced pending felony charges. The police were told by Hitt that on Monday, December 12, defendant had asked him to tell anyone who might inquire that he was with Hitt until 8:00 p.m. on Friday, December 9, the evening of Miss Velzy's disappearance. Although defendant did not then tell Hitt why it was important for him establish an alibi for that Friday evening, Hitt reported the incident to his own attorney. Thereafter (and after attorney Owen had expressly directed the police to cease questioning defendant about the Velzy matter), on December 21 at a conference in the chambers of the County Court Judge attended by the Judge, the prosecutor, Hitt and Hitt's attorney, it was agreed that Hitt would be permitted to plead guilty to charges not requiring incarceration and would, in fact, not be sentenced to incarceration, in exchange for his co-operation in the Velzy investigation, provided such co-operation led to the arrest of at least one person criminally responsible for Velzy's disappearance. Hitt's attorney testified that he understood the objective at the time to be "to get Knapp".
During the next 10 days, Hitt made several telephone calls to defendant which were recorded by State Police investigators. In the same period the State Police also outfitted Hitt with recording equipment for several face-to-face meetings with defendant. In only two of these more than half dozen recorded conversations was any relevant or incriminating statement made. Defendant twice repeated his request, without elaboration, that Hitt support defendant's alibi for Friday evening, December 9. In exchange for Hitt's agreement to do that, defendant agreed to support an alibi for Hitt's own pending unrelated charges.
On December 31 the case finally broke open when it was disclosed why it was that defendant wanted an alibi for December 9. It was then that defendant confirmed to Hitt that he had killed Linda Velzy. In an unrecorded conversation, defendant related that he had picked up the Velzy girl while she was hitchhiking on West Street in the City of Oneonta around 6 o'clock or a little after on December 9, that he had had a sexual encounter with her, that as they were coming back into town differences arose between them and she got all upset and jumped out of the car, that she lay in the ditch semiconscious, that he got out of the car and put her in the back seat and told her that he was going to take her to the hospital, and that instead he drove over into Delaware County where he hit her in the throat three times with his fist, killing her. He added that he wanted move the body to Hitt's logging site, and Hitt agreed to assist.
Hitt alerted the State Police and on January 1, 1978 informed them that defendant and he were going to move the body of Linda Velzy from the place where it was then located to a grave on Hitt's logging site on Winney Hill Road. On the basis of this information the police set up a stakeout to await the arrival of defendant and Hitt with the deceased girl's body. Shortly after 6:00 p.m. defendant and Hitt arrived at the logging site, and defendant was observed dragging the frozen body to a grave which had been prepared by use of a bulldozer furnished by Hitt. The police announced their presence and thereupon seized and arrested defendant. It was the testimony of some of the police witnesses that as he was being grappled to the ground he blurted out,
Defendant was taken to the State Police station in Unadilla where he was given his constitutionally mandated preinterrogation warnings. He waived his right to counsel and made a full confession of his involvement in the disappearance and death of Linda Jill Velzy which was reduced to typewritten form and signed by him. Based entirely on Hitt's sworn testimony as to admissions made to him by defendant, the police obtained a warrant to search the car defendant had been driving on December 9. The search uncovered a contact lens, wood chips, cat and dog hairs, blonde human hair and Christmas decoration "glitter squares". 1
The January, 1978 Otsego County Grand Jury returned an indictment charging defendant with two counts of murder in the second degree. In count one it was alleged that defendant intentionally caused Linda Velzy's death by beating her about the head and neck with his fists (Penal Law, § 125.25, subd. 1), and in count two it was alleged that defendant, in circumstances evincing a depraved indiffere to human life, recklessly created a grave risk of her death and caused her death by failing to transport her for medical care (Penal Law, § 125.25, subd. 2).
On pretrial motions by defendant, the trial court denied suppression of the blurted-out expression of guilt and remorse made by defendant when he was apprehended at the grave site, of the two detailed confessions (the oral admissions made to Arthur Hitt before defendant's arrest and the signed typewritten confession made to the police after his arrest), and of the various items of physical evidence seized from defendant's car pursuant to the search warrant.
At trial, although none of the taped recordings of defendant's conversations with Hitt were offered in evidence, Hitt was himself permitted over objection to testify with respect to the statements made to him on December 31 in which defendant detailed his participation in the disappearance of Linda Velzy and the associated subsequent events. The prosecution was also permitted to introduce the items of physical evidence taken from defendant's car and his signed typewritten confession.
Defendant took the stand and testified that, by Hitt's own admission to him, it was Hitt rather than defendant who had had the sexual encounter and who had killed the Velzy girl, that Hitt supplied the car and drove it and also furnished the shovel, sheet and bulldozer for the reburial and...
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