People v. Slocum

• Decision Date: 12 November 2015
• Citation: 133 A.D.3d 972,20 N.Y.S.3d 440
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew A. SLOCUM, Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 972

20 N.Y.S.3d 440

The PEOPLE of the State of New York, Respondent,

v.Matthew A. SLOCUM, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 12, 2015.

Michael J. Mercure, Public Defender, Fort Edward, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Jason Weinstein, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: LAHTINEN, J.P., EGAN JR., DEVINE and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered March 20, 2012, upon a verdict convicting defendant of the crimes of murder in the second degree (three counts), arson in the third degree, tampering with physical evidence, petit larceny and criminal possession of a weapon in the third degree.

Defendant was convicted by a jury of shooting and killing his mother, stepfather and stepbrother in their home in the Town of White Creek, Washington County, as well as stealing several items of personal property, including multiple firearms, and setting fire to the victims' home. The evidence considered by the jury included, among other things, statements that defendant made to law enforcement officials on the night of his arrest, as well as his statement to a social services worker while in jail following his arrest. Defendant argues on appeal that his convictions for murder in the second degree were against the weight of the evidence, an argument we reject (see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. Bleakly, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant's admissions, together with the testimony of his girlfriend, Loretta Colegrove, and the forensic evidence, demonstrate that defendant, with the requisite intent, caused the death of his mother, stepfather and stepbrother (see Penal Law § 125.25[1] ; People v. Hamilton, 127 A.D.3d 1243, 1243, 6 N.Y.S.3d 707 [2015], lvs. denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ). While a contrary verdict would not have been unreasonable in light of defendant's testimony at trial identifying Colegrove as the shooter, the jury was free to credit Colegrove's testimony over defendant's testimony (see People v. Stanford, 130 A.D.3d 1306, 1308, 14 N.Y.S.3d 560 [2015] ) and, upon our independent review, we find defendant's convictions of murder in the second degree to be supported by the weight of the evidence (see People v. Green, 121 A.D.3d 1294, 1294–1295, 994 N.Y.S.2d 716 [2014], lv. denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ; People v. Vanderhorst, 117 A.D.3d 1197, 1198–1200, 984 N.Y.S.2d 688 [2014], lv. denied 24 N.Y.3d 1089 [2014] ).¹ With that said, however, the dispositive issue herein is whether the jury should have had before it all the evidence it did. Inasmuch as we conclude that defendant was denied his right to counsel during police questioning, we reverse the judgment of conviction, partially grant defendant's previously denied motion to suppress, and direct a new trial.

It is well settled that a defendant's indelible right to counsel attaches in two situations; the first being "upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer," and the second when "an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter" (People v. West, 81 N.Y.2d 370, 373, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993] ). Once a defendant unequivocally requests counsel, all police questioning must cease (see People v. Jemmott, 116 A.D.3d 1244, 1246, 984 N.Y.S.2d 443 [2014] ). Further, "[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his [or her] right to counsel in the absence of the lawyer" (People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.S.2d 419, 348 N.E.2d 894 [1976] ; see People v. Callicutt, 85 A.D.3d 1326, 1327, 924 N.Y.S.2d 675 [2011], lvs. denied 18 N.Y.3d 992, 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ).

On July 13, 2011, the same day the crimes were committed, defendant fled to New Hampshire with Colegrove and their three-month-old child, where he was apprehended and arrested later that evening. Also on that day, but before defendant's arrest, Michael Mercure, the Washington County Public Defender, sent a letter to the Washington County District Attorney's office, the Washington County Sheriff's Department and the State Police² indicating that defendant had open charges in the Town of Greenwich, Washington County and, as such, was "a present client of the Public Defender's [o]ffice and would qualify for representation on any additional charges against him." The letter went on to state that Mercure knew defendant was "a person of interest and/or suspect in a potential arson/homicide in the Town of White Creek." On this basis, Mercure requested that he be contacted if defendant was "arrested and/or detained" and he specifically requested that defendant "not be questioned or interrogated without counsel present."

Bruce Hamilton, an investigator with the Washington County Sheriff's Department, and John Ogden, a State Trooper, traveled to New Hampshire to interview defendant at the state-owned facility where he was being detained. Prior to their departure for New Hampshire, a meeting was held at which the District Attorney instructed Hamilton and Ogden that, despite Mercure's letter, they could interrogate defendant until he asked for an attorney. Before commencing the interrogation, Hamilton told defendant that he was aware that defendant was represented by the Public Defender's office on a different charge and asked defendant "if he felt that he should have an attorney or if he wanted to be represented by the Public Defender's office," to which defendant responded, "Yeah, probably." Likewise, Ogden recalled Hamilton asking defendant "if he intended or expected to use [the Public Defender's office] to represent him" with respect to the current charges and that defendant had replied, "Yeah, probably." In response to Hamilton's further inquiry as to defendant's satisfaction with the legal representation afforded by the Public Defender's office, defendant indicated displeasure at the resolution of an old case. Hamilton and Ogden then handed defendant a Miranda rights form, had him sign it and proceeded to question defendant about the instant crimes. Neither officer showed defendant Mercure's letter, nor did they inform him of its existence.

"A defendant's request for an attorney will invoke his or her indelible right to counsel if the request is unequivocal, an inquiry which is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant" (People v. Higgins, 124 A.D.3d 929, 931, 1 N.Y.S.3d 424 [2015] [internal quotation marks and citations omitted]; see People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ). "The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney" (People v. Jemmott, 116 A.D.3d at 1247, 984 N.Y.S.2d 443 [citation omitted] ), and a statement that is "merely a forewarning of a possible, contingent desire to confer with counsel rather than an unequivocal statement of [a] defendant's present desire to do so" is not sufficient to invoke the right to counsel (People v. Higgins, 124 A.D.3d at 931, 1 N.Y.S.3d 424 ).

On appeal, the People contend that defendant's statement—namely, "Yeah, probably"—did not unequivocally invoke his right to counsel. We disagree. The word "probably" is defined as "very likely" or "almost certainly" (Merriam—WebsterOnline Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where "probably" would mean "no," particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client's constitutional rights. Defendant's demeanor and tone when saying "Yeah, probably" was his simple expression, in everyday language, that he was not competent or capable to deal with the officers' questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant's statement was a request for counsel, requiring questioning without representation to cease (see People v. Jemmott, 116 A.D.3d at 1247, 984 N.Y.S.2d 443 ).³

Even if a reasonable officer could have interpreted "Yeah, probably" to be equivocal, the unique circumstances presented herein—namely, the existence of Mercure's letter—created a situation where Hamilton and Ogden were required to inquire further to see if the indelible right to counsel had attached and to "insure that the defendant's right to be represented by counsel be protected" (People v. Callicutt, 85 A.D.3d at 1328, 924 N.Y.S.2d 675 [internal quotation marks and citation omitted] ). "Any arguable ambiguities in the attorney-client relationship cannot be seized by [law enforcement] as a license to play fast and loose with this precious right" (id. [internal quotation marks and citations omitted]; see People v. Lopez, 16 N.Y.3d 375, 380–381, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [2011] ; People v. Ramos, 40 N.Y.2d 610, 618, 389 N.Y.S.2d 299, 357 N.E.2d 955 [1976] ). To be clear, we understand the constraints of our case law prohibiting us from finding that Mercure's letter, in and of itself, constituted a formal appearance by counsel because it did not communicate that Mercure represented defendant with respect to the murders/arson. As such, we must find that this letter...