People v. Krom
| Decision Date | 23 February 1984 |
| Citation | 473 N.Y.S.2d 139,461 N.E.2d 276,61 N.Y.2d 187 |
| Parties | , 461 N.E.2d 276 The PEOPLE of the State of New York, Respondent, v. Ronald H. KROM, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Gary Greenwald, Wurtsboro, for appellant.
Stephen F. Lungen, Dist. Atty., for respondent.
The primary question on this appeal concerns the admissibility, under the State Constitution, of statements concerning the whereabouts of a kidnap victim made by the kidnapper to the police after he had been arrested and had asserted his right to counsel. The trial court held that the defendant's rights had not been violated and that all his statements were admissible. He was subsequently convicted of felony murder and related offenses at a jury trial. The Appellate Division, 91 A.D.2d 39, 458 N.Y.S.2d 693, affirmed the conviction concluding that some of the statements, made after the defendant had led the police to the victim's body, should have been suppressed but that the error was harmless under the circumstances. The defendant appeals.
In May, 1977 the victim, Trudy Farber, resided with her husband Roger at Sackett Lake, New York. Both of the Farbers had jobs outside the home. On the evening of May 24, 1977, Roger Farber arrived home with his business partner at approximately 5 o'clock. After entering the house, they encountered a man wearing a ski mask who was armed with a rifle. The man motioned them to the floor and tied their hands behind their backs. The man then showed Roger Farber a note asking when Trudy was expected home and was told she should be back about 5:30. The man informed Farber, with another note, that he should not call the police or the FBI and that Trudy's father, Harry Resnick, "would be contacted". When Trudy Farber arrived soon thereafter, the man abducted her and led her at gunpoint through the woods at the rear of the premises.
After freeing himself, Roger Farber called his father-in-law and the FBI. The State Police and the local Sheriff's office were also notified. With the consent of Farber and the Resnicks, wire taps were placed on their telephones. At approximately 6:30 that same evening a man telephoned Mr. Resnick and demanded a million dollars ransom for his daughter's safe return. Resnick agreed to try to raise the money. The next evening at about 11 o'clock a man called and asked for Mr. Resnick. This call was answered by Roger Farber. Although the caller immediately hung up, Farber was able to identify the voice as that of the defendant. Farber had known the defendant for several years. Their parents had been business associates at one time, they had hunted together on at least one occasion, and, more recently, the defendant had asked Farber to invest in a bar.
On the morning of May 26, 1977 two State Police investigators, Fuente and Chandler, went to the defendant's home where he resided with his parents. In the garage they noticed an orange Corvette which seemed to fit the description of a car seen by neighbors near the Farber residence at the time of the kidnapping. When the defendant came out, Fuente informed him that they were trying to find Trudy Farber, who had been kidnapped, and that they believed the defendant may have information which might help them. Fuente noted the results of the investigation thus far with respect to the car and the identification of the defendant's voice by the victim's husband. He also advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The defendant said that he did not want a lawyer and told the police that he might know "something" or someone who knew where the victim was. However the defendant wanted $400,000 for the information. He then entered his car and attempted to start it, but Chandler removed the keys and Fuente asked the defendant to come to the police station to see if he could assist in the investigation. Defendant agreed to go with the officers.
At the police station the defendant continued to demand large sums of money for information concerning the victim's whereabouts and asked the police to produce the victim's father so that arrangements could be made for payment. He repeatedly stated that the victim was safe and that he would lead them to her if her father would agree to meet his monetary demands. At other times he stated that he did not know where the victim was, or "exactly" where she was, and refused to provide any information without compensation. On several occasions he suggested that the victim's husband was involved in the kidnapping and that the police should seek his assistance. He admitted, however, that he had made the two phone calls demanding $1,000,000 in ransom money. During the discussions he stated that he would accept $400,000 and later reduced his demands to $300,000 indicating that $100,000 would be paid to the victim's husband. Indeed, in the officer's presence, he drafted a written agreement for the victim's father to sign assuring the payment of the money demanded. He also drafted another agreement for the police to sign which, in essence, granted him immunity for his cooperation. When the officers stated that they could not sign such an agreement, the defendant started to leave. At that point the officers informed him that he was under arrest. The defendant then asked to speak with a lawyer and all questioning ceased.
The defendant initially requested a Florida attorney but when the police suggested that might be impractical, the defendant called a local attorney who had previously represented his family. When the attorney came to the station house the defendant informed him that he could not pay his fee unless he received the money demanded of the victim's father. The attorney left after informing the defendant, and the police, that he would not represent the defendant and had recommended that the defendant call Legal Aid.
The police asked the defendant if he wanted to consult with a Legal Aid lawyer; the defendant replied that he would act as his own attorney. He also persisted in his refusal to provide the police with any information concerning the victim and repeated his request that the police produce the victim's father so that a financial arrangement could be made. In addition, he reduced his demands and stated that he would take them to Trudy Farber if her father agreed to pay his attorney's fees, bail, and $10,000 for "expenses".
Later that evening the victim's father met the defendant at the police station and agreed to make these payments. The defendant briefly reasserted his demand for $400,000, but when the police protested that that was not "the deal", the defendant jumped up and said "Let's go".
The defendant was placed in a police car and directed the officers to a wooded area in an adjoining county. He removed some leaves and branches from the ground revealing a grave-shaped hole containing a large box with a lock on the lid. He also produced a key from under a nearby rock. When the box was opened the police found the body of Trudy Farber. A subsequent autopsy showed that she had died of suffocation. At that location the police also found a rifle, ski mask, and clothing fitting the description of the items used by the kidnapper. A sales record, found prior to trial, showed that the defendant had purchased the rifle a short time before the kidnapping.
The police informed the defendant that he was now being held for murder and noted that there were bullet holes in the lid of the box. The defendant stated that he had tried to ventilate the box by shooting holes in the lid before he placed the victim in it. He also stated that he had returned the next day, opened the box, and had offered Mrs. Farber food and something to drink, but she had refused the food. After being returned to the station house, the defendant gave a full oral confession in response to police questioning.
At about midnight the defendant was arraigned before a Town Justice. He was then transported to the county jail by two police officers who had not been involved in the prior questioning. Without any prompting from the officers, the defendant again provided a full narrative of the kidnapping.
The defendant was indicted for felony murder, kidnapping and burglary. He made a pretrial motion to suppress all of the statements he had made to the police. After a hearing the court denied the motion. The suppression court found that the police questioning of the defendant "became custodial" when they removed the keys from his car at his home. The court noted, however, that "the police were not merely investigating an antecedent crime, but were conducting an investigation during a crime in progress, one of their main purposes, if not the main purpose, being to save the life of the victim". The court also held that the statements allegedly made by the defendant on the way to jail "were not the result of interrogation, suggestion, or prompting, and were spontaneously volunteered". The court concluded that those statements made by the defendant "which were the result of interrogation, and any volunteered thereafter, were not made in violation of any of his constitutional rights". The statements were later admitted at a jury trial and the defendant was found guilty as charged.
The Appellate Division affirmed holding that the police did not violate the defendant's State constitutional right to counsel by questioning him concerning the victim's whereabouts after he had been arrested and had asserted his right to counsel, because this type of questioning falls "within the missing person investigation emergency exception" (91 A.D.2d, at p. 44, 458 N.Y.S.2d 693). However, the court found that the emergency ended once the victim's body was discovered, and therefore the trial court should have suppressed the statements the defendant subsequently made in response to police questioning. Nevertheless, the court concluded that the error...
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