People v. McNeely

• Decision Date: 13 November 1980
• Citation: 433 N.Y.S.2d 293,77 A.D.2d 205
• Parties: PEOPLE of the State of New York, Respondent, v. Gloria McNEELY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 293

433 N.Y.S.2d 293

77 A.D.2d 205

PEOPLE of the State of New York, Respondent, v. Gloria McNEELY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 13, 1980.

Richard V. Slater, Mayville, for appellant; J. Kevin Laumer, Mayville, of counsel.

John T. Ward, Jr., Dist. Atty., Mayville, for respondent; Criminal Justice Appellate Reference Service by Stephen Foyer, New York City, of counsel.

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.

MOULE, Justice.

Defendant was convicted of murder in the second degree for causing the death of her two-year-old daughter. On April 19, 1976, at approximately 2:15 P.M., defendant, accompanied by a friend, brought her daughter to the emergency room of the W.C.A. Hospital in Jamestown. The child had severe burns on the lower half of her body, was bruised on her head, chin, upper arms, shoulders and back, had welts about her head and was near death. When the child failed to respond to resuscitative efforts, she was taken to Buffalo Childrens Hospital where she died.

After being notified of the death by the Buffalo Homicide Squad, Detective Gary Johnson of the Jamestown Police Department obtained from the Department of Social Services its file on the McNeelys. As he was leaving the Department of Social Services, he saw defendant, at about 11:45 A.M., standing near the elevator and asked her to come to the police station located in the same building, to which defendant agreed. Before talking to her further, another detective, George Thompson, gave her Miranda warnings and, at approximately 12:50 P.M., she signed a waiver of rights. She gave a written statement that she had put her daughter on a cot to nap, had herself fallen asleep and upon awakening had found the baby scalded in the bathtub. At about 2:25 P.M. defendant signed a consent to search form and then went to lunch with a police clerk. Detectives Johnson and Thompson then went to her apartment to make tests of the temperature of the water which they ran into her tub and to take photographs. After returning at about 3:45 P.M., the detectives received a phone call from the medical examiner who had performed an autopsy. The doctor stated that, in her opinion, the distribution of burns on the child's body indicated that the baby had been held in hot water and the death was a homicide.

Defendant, who was sitting in a room adjoining the one in which the detectives were talking to the doctor, heard portions of the conversation. She entered the room where the detectives were, stating, "I didn't kill her, I don't care what the doctor says." After being confronted with the autopsy findings, defendant recanted her first statement and gave another one in writing in which she admitted holding the child down in water in the tub. She read and signed the second statement at approximately 4:05 P.M. and was arrested.

Defendant contends that her statements, as well as the results of the search of her apartment to which she gave her consent, should have been suppressed at trial as the products of an illegal detention.

Any involuntary detention on less than probable cause violates the Fourth Amendment (Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; People v. Misuis, 47 N.Y.2d 979, 419 N.Y.S.2d 961, 393 N.E.2d 1034) and an illegal detention serves to invalidate a subsequent confession unless an intervening event of significance dissipates the taint of the original illegality (Dunaway v. New York, supra; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Johnson, 75 A.D.2d 715, 427 N.Y.S.2d 120). Even though a defendant may voluntarily accompany the police, the situation may become custodial in nature. In deciding whether a defendant is in custody, the test is not what the defendant or the police thought but, rather, what a reasonable person, innocent of any crime in the defendant's position, would have thought (People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172; People v. Byers, 71 A.D.2d 77, 80, 421 N.Y.S.2d 462).

On this record there is no indication that defendant was forced to accompany Detective Johnson or to remain at the station against her will. At the Huntley Hearing the detectives did testify that, after the defendant's first statement, they wanted her to remain until they had completed the search of her apartment and the autopsy findings came in. They requested that she remain and asked a police clerk to accompany her to a restaurant outside of the police station for coffee. At that time there was no probable cause upon which to arrest the defendant. Defendant neither presented any evidence at the Huntley Hearing, nor testified at trial that she was forced to go to the station or was forced to remain. There is nothing on the record to contradict the testimony of the detectives that defendant was free to go or to suggest that a reasonable, innocent person would have thought he was in custody given these facts. Where there are different inferences that can be drawn from the facts, the choice is for the trier of the facts and should be honored unless unsupported as a matter of law (People v. Maerling, 46 N.Y.2d 289, 301, 413 N.Y.S.2d 316, 385 N.E.2d 1245; People v. Yukl, supra, 25 N.Y.2d p. 588, 307 N.Y.S.2d 857, 256 N.E.2d 172; People v. Anderson, 42 N.Y.2d 35, 38-39, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Liccione, 63 A.D.2d 305, 313, 407 N.Y.S.2d 753). We conclude that the evidence is sufficient to support the trial court's finding that defendant voluntarily went to and remained at the police station. Consequently, the defendant's statements and consent to search are not invalidated by an illegal detention.

Defendant also contends that the bathtub should have been suppressed because it was seized without a warrant on April 28, six days after the consent to search was executed.

Although the police had the landlord's consent to take the bathtub, it is well established that a landlord does not possess the authority to consent to the search of a tenant's apartment (Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; People v. Stadtmore, 52 A.D.2d 853, 854, 382 N.Y.S.2d 807). To use consent to justify the lawfulness of the search and seizure, the prosecution has the burden of proving by clear and convincing evidence that the consent was unequivocally, voluntarily and freely given by defendant (Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed. 797; People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Whitehurst, 25 N.Y.2d 389, 306 N.Y.S.2d 673, 254 N.E.2d 905; People v. Tinneny, 99 Misc.2d 962, 965, 417 N.Y.S.2d 840). Moreover, the court is required to indulge every reasonable presumption against the waiver of constitutional rights guaranteed by the Fourth Amendment (Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 32 L.Ed. 1461).

Considering the changed circumstances between the time of the consent and original search and the time at which the bathtub was taken, the ample opportunity the police had during the six days to obtain a warrant, and the form signed by the defendant explicitly stating that the search was to take place within two hours of signing, we find the taking of the bathtub may have been illegal and, if so, should have been suppressed at trial.

However, the bathtub was only exhibited twice throughout the entire trial. It was shown during the testimony of the medical examiner to illustrate the comparative height of the child and tub and apparently to refute the notion that the child climbed into the tub herself. The bathtub was also in the courtroom during the prosecution's summation. The admission of the illegally seized evidence may have been constitutional error but it was harmless since there is overwhelming proof of the defendant's guilt. The Federal harmless error test that there was no reasonable possibility that the error might have contributed to the defendant's conviction was met (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant contends the medical examiner's testimony that the child was held in the water was improper opinion evidence by an expert witness because such conclusions are within the range of ordinary thinking and because it was mere speculation. At trial, the medical examiner stated that the water lines on the victim's body, clearly delineating burned and nonburned flesh in straight, sharp lines, indicated, in her opinion, that the child was held in a stationary position in the water. On cross-examination, the medical examiner conceded that it was possible for the burns to have been sustained even if the child was not held. In addition, a defense expert testified that, in his opinion, the burns were sustained after the child was rendered unconscious by a seizure and that it was inconceivable to him, upon examining the distribution of the burns, that the child was held in a stationary position. Given the unusual nature of the injuries and the conflicting positions taken by the expert witnesses, it cannot be said that the statement by the medical examiner was unnecessary and within the common knowledge of the jurors. It is conceivable that the average juror could not determine...