People v. Newson

• Citation: 417 N.Y.S.2d 264,68 A.D.2d 377
• Parties: The PEOPLE, etc., Appellant, v. Tommy Lee NEWSON, Respondent.
• Decision Date: 04 June 1979
• Court: New York Supreme Court Appellate Division

Page 264

417 N.Y.S.2d 264

68 A.D.2d 377

The PEOPLE, etc., Appellant, v. Tommy Lee NEWSON, Respondent.

Supreme Court, Appellate Division, Second Department.

June 4, 1979.

John J. Santucci, Dist. Atty., Kew Gardens (Joan L. Craig, Asst. Dist. Atty., Kew Gardens, of counsel), for appellant.

James Horan, New York City, for respondent.

Before SOUZZI, J. P., and RABIN, GULOTTA and SHAPIRO, JJ.

SHAPIRO, Justice.

The defendant was indicted for murder in the second degree and criminal possession of a weapon in the fourth degree (an electrical cord) in connection with the death by strangulation of one Mildred Cheeks. Thereafter the Supreme Court, Queens County, granted defendant's motion to suppress certain statements made by him to the police and the District Attorney. The People appeal. There should be an affirmance.

ISSUES.

1. Was the defendant in custody at the time of his first statement, thereby requiring suppression of that statement because of the failure of the interrogating detective to adequately inform defendant of his Miranda rights?

2. Was the defendant's second statement inadmissible even though preceded by proper Miranda warnings, upon the grounds (a) that it was made upon constraint of the first statement, or (b) that the two statements were part of a single continuous chain of events?

THE FACTS ADDUCED AT THE HUNTLEY HEARING.

At the Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179), the court heard the testimony of two witnesses Detective Flemings and Assistant District Attorney McCloskey, each of whom had questioned defendant and obtained a statement from him.

Flemings testified that he reported for duty at about 1:00 A.M. on June 28, 1977 and was then informed of a homicide in the 100th Precinct. At about 1:30 A.M. he arrived at 169 Beach 115th Street, where he observed the victim (Mildred Cheeks) lying on a bed with an electric cord wrapped around her neck. He then went to the 100th Precinct Detective Office. Sometime between 1:30 and 2:15 A.M. he spoke to defendant.

Defendant had called the police to the scene of the homicide and the questioning concerned why he had made the call. Sometime during the course of this questioning, Flemings advised defendant of his rights:

"Q. And what rights did you advise him of?

"A. I advised him of his rights to counsel. I advised him that anything he said may be used against him in a court of law. I advised him that he was entitled to an attorney. And

"THE COURT: What else?

"THE WITNESS: I advised him he was entitled to an attorney. I advised him that he didn't have to make a statement.

"THE COURT: What else did you advise him of?

"THE WITNESS: I advised him that anything he said could be used against him in a court of law.

"THE COURT: What else did you tell him, if anything?

"THE WITNESS: That's about all.

"THE COURT: Well, let me ask you this. When you were advising him, did you do it from memory or did you have something with you?

"THE WITNESS: I did it from memory."

Flemings then testified:

"A Well, after telling us several stories, he told us that him and Mildred had been drinking earlier that evening. And that they had gotten into an argument relative to his fooling around with other girls on the block. He told her that he hasn't been fooling around with girls on the block, and that she should leave him alone. She used the expression called him a 'pussy' and he said he got very upset, and she put him out of her room. Later on he went down to her room, which is on the first floor. The door was locked. He said he believed he kicked it in. He went in the room. They started arguing again. And they made up. They were laying on the bed rassling (Sic ). He remembered that she had called him a bad name, and he reached and grabbed an electric cord that was on the bed, wrapped it around her neck and pulled it.

"She lost consciousness. He tried to revive her, and then called the police. And that was the statement."

Flemings described defendant's status at that time as "a witness who had discovered a woman dead, who had dialed 911, who we needed to possibly speak to to get some insight as to what happened to this deceased."

On cross-examination, Flemings testified that defendant had called 911 at about 10:00 or 10:30 P.M. He did not know when the police first arrived at the scene, but they were there when he arrived at 1:30 A.M. At that time, defendant was already at the 100th Precinct.

When Flemings arrived at the precinct, defendant was sitting with two detectives. He was not handcuffed. Initially, Flemings stated that he did not know whether defendant was free to go at that time. Immediately thereafter, however, he stated that defendant was not under arrest at that time and could have gotten up and walked out. Flemings then conferred with the two detectives, asking them to bring him up to date on the investigation. More specifically, he asked them: (1) what defendant had to do with the investigation; (2) why defendant was at the precinct; (3) whether they had questioned defendant; (4) whether defendant had made a statement; (5) whether defendant was a suspect; and (6) whether there were other suspects. He did not ask them: (1) what time they had arrived at the scene; (2) what time they had brought defendant to the precinct; (3) what questions they had asked defendant; and (4) whether they had given defendant Miranda warnings.

The detectives told him that defendant "was telling several different stories about what had happened." One story was that the victim had tried to kill herself several times in the past and that she had wrapped a cord around her neck and killed herself. Another was that someone had come into the victim's room through the window, wrapped the cord around her neck and left through the window. Flemings concluded, however, that these "stories" were merely defendant's speculation as to what might have happened, and that they were not events which defendant said he had witnessed.

As the result of the information he received from the detectives, Flemings further questioned defendant as to why he had called the police. He had no knowledge of any confession defendant might have made and was of the opinion that defendant had, up to that time, made no admissions.

There came a time during the course of the questioning when, in Flemings' mind, defendant became a suspect. Flemings explained his thoughts at the time as follows:

"It was my opinion from speaking to Mr. Newson, and it was also my opinion from other aspects of the investigation that this man had in the past had violent altercations regarding (the victim) where the police had come with this particular person, and being that he was telling different stories of his opinion of what happened, I felt it was something more here than had transpired."

At that point Flemings advised defendant of his Miranda rights in the manner noted above. During the ensuing 20 minutes, Flemings obtained a statement which the hearing court suppressed. At the conclusion of the statement, Flemings formally placed the defendant under arrest. It was then 2:20 or 2:30 A.M. At 3:00 A.M. Flemings called McCloskey and informed him of the confession. Immediately thereafter, Flemings and defendant left for the 113th Precinct. The trip took 45 minutes at the most and they arrived at about 3:45 A.M. McCloskey, who was already there, set up a tape recorder, spoke to Flemings about the case and then said he was ready to talk to defendant.

Flemings was in the room when McCloskey questioned defendant and also participated in the questioning. During that time, defendant was nervous and stammered. He was also a little upset. McCloskey read defendant his rights from a card and asked him if he wanted to make a statement. Defendant replied that he did.

McCloskey testified that at 4:00 A.M. on June 28, 1977, he went to the 113th Precinct and spoke to Detective Flemings. He then spoke to defendant with Flemings present. This conversation was recorded. He identified the tape of the conversation which was then played for the court. The substance of his statement is not pertinent to this appeal.

THE HEARING COURT'S DECISION.

After summarizing the substance of the Miranda decision, the court set forth the following conclusions of law:

"8. In the instant matter, the testimony of the detective is that he advised the defendant of three of his rights from memory at a point in their discussions when he became suspicious from the defendant's statements. The officer's Miranda warnings were incomplete and inadequate. The failure of the detective to advise the defendant of all of his rights precluded him from knowingly and intelligently waiving them. The law requires the People to prove a voluntary waiver. The facts herein do not satisfy the burden of proof that the People bear.

"9. The inadequacy of the warnings combined with the police dominated atmosphere of the questioning makes the voluntariness of the defendant's waiver of rights suspect. Under the circumstances surrounding this confession, it is apparent the defendant could have reasonably inferred that he was in custody from the time he was first brought and questioned in police headquarters. Under the test in People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 (1969), the circumstances of the defendant's repeated questioning clearly indicates a situation where 'a man who makes admissions under duress or in violation of his constitutional right to warning and advice may feel so committed by what he has then said that he believes it futile to assert his rights after he has later been advised of them before new questioning begins.' See People v. Tanner, 30 N.Y.2d 102, 331 N.Y.S.2d 1, 282 N.E.2d 98 (1972). The defendant was nervous, crying and stammering. Also the defendant repeatedly protested his innocence. In turn, statements to the detective are not subsequently repeated when questioned after warnings by the Assistant...