People v. Smith

• Decision Date: 03 February 1983
• Citation: 117 Misc.2d 737,459 N.Y.S.2d 528
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Lemuel SMITH, Defendant.
• Court: New York Supreme Court

Page 528

459 N.Y.S.2d 528

117 Misc.2d 737

The PEOPLE of the State of New York, Plaintiff, v. Lemuel SMITH, Defendant.

Supreme Court, Dutchess County.

Feb. 3, 1983.

Sp. Dist. Atty. William E. Stanton (with him B. Anthony Morosco and Richard C. Schisler), Poughkeepsie, for plaintiff.

William Kunstler, and Mark Gombiner, New York City, for defendant.

ALBERT M. ROSENBLATT, Justice.

The defendant stands indicted for the murder of Green Haven Correction Officer Donna Payant. The indictment is drawn pursuant to Penal Law Section 125.27(1)(a)(iii), charging what is a capital offense [Penal Law § 60.06] for allegedly committing murder while in custody upon a life sentence. ¹

The defense has moved to suppress the defendant's statements after receiving notice of the prosecutor's intention to introduce them [CPL § 710.30]. They also challenge the admissibility of the proposed testimony of a number of prosecution witnesses, claiming that the witnesses, who were hypnotized, are thereby rendered incompetent to testify.

As for the defendant's statements, the court held a Huntley hearing [People v. Huntley, 15 N.Y.2d 72, 75, 255 N.Y.S.2d 838, 204 N.E.2d 179; CPL 710.60(4) ] which has centered around the interplay of the Fifth and Sixth Amendments, the Miranda case, and the custodial state of an alleged suspect already imprisoned on unrelated charges--or, as it might be termed, the question of custody within custody. A hearing was also held on the hypnosis motion.

The court makes the following findings of fact and conclusions of law.

The body of Green Haven Correction Officer Donna Payant was discovered, extensively bitten and mutilated, on May 16, 1981, at a garbage landfill in Amenia, New York, at which Green Haven refuse deposits are made. The New York State Police immediately became involved in an investigation to determine who killed her.

At the time Payant was killed, Lemuel Smith was an inmate at Green Haven Correctional Facility, assigned to work in the office of the Catholic Chaplain, Father Edward At the outset, and through the five day period from the discovery of the body on May 16, 1981, until the first interview with defendant on May 21, 1981, many people were interviewed by the police in an attempt to track the victim's movements and whereabouts on May 15, 1981, the date of the killing.

Donovan--the location at which the People claim Donna Payant met her death.

The defendant was first interviewed on May 21, 1981, at about 2:40 p.m. by Sr. Investigator John Crodelle, in the presence of two other New York State Police investigators. The People concede that he was questioned without having first been warned under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but contend that no warnings were necessary because the defendant was not "in the custody" of the State Police, and endeavor to distinguish between police custody for Miranda purposes, and general prison population confinement. Under some circumstances, the difference may be controlling, because the Fifth and Sixth Amendments should not be read in a wholly abstract vacuum, unrelated to the realities of a homicide investigation conducted in a prison. If confinement alone were the test, no prisoner, because of his status as an incarcerated felon, could ever be lawfully questioned without Miranda warnings [Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir.1979) ].

No decision has reached that far, and the parties, recognizing it, have focused their proof on the defendant's individual status, and the issue of whether he was one who, by virtue of the direction taken in the investigation, was a custodial suspect to whom Miranda warnings would have been mandated. Thus, the defendant's status was argued for Huntley purposes, insofar as it affects defendant's classification under New York cases which define custody for Miranda requirements [e.g., People v. Rodney, P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255; People v. Kwok, T., 43 N.Y.2d 213, 401 N.Y.S.2d 52, 371 N.E.2d 814]. The People adduced proof to show that on May 21, 1981, the defendant was in the undifferentiated prison population, and that he was not moved to the Special Housing Unit until May 25, 1981, when the State, on that date, acquired a court order [Town of Beekman Justice Robert Ferriss] authorizing the seizure of the defendant's false teeth, to compare them with the bite marks on Donna Payant's body.

The prosecution contends that until May 25, 1981 he was, at least on the surface, treated no differently, in terms of his housing and meals, than any other prisoner. The proof is fairly susceptible of this interpretation. There is also Exhibit H, a prison memo, which suggests the opposite, but which, because of the ambiguity surrounding it, cannot be given controlling or even contributory weight.

It is also clear that on May 21, 1981, at the time of the first Crodelle interview, there were several inmates whom the police were looking at, and had not yet fixed all of their attention on any single person. Indeed, the court finds that on May 21, 1981, Captain DeFrancesco asked the prison for a list of Green Haven murderers and sex criminals, which he received, and then on May 22, 1981, asked for a second list of Green Haven prisoners with records of sex homicides or serious sex crimes.

The lists numbered over 600, a figure which lends support to the prosecution's claim that with so large a pool of possible suspects, the State's undivided gaze had not come to rest on any single one of them. It does not, however, rule out the existence of three or four prominent suspects. The defense, on the other hand, claims, and the court finds, that when the defendant was questioned on May 21, 1981, the New York State Police were aware that the defendant had been accused of the July 21, 1977 bite mark murder of Marilee Wilson, in Schenectady, New York. The similarity and modus operandi involved in the two crimes could not possibly have escaped them, and they do not claim otherwise. It certainly had not escaped the Albany news media, or the Albany television evening newscast of May 21, 1981, in which defendant's name was mentioned The court further finds that two days before the May 21, 1981 interview, the New York State Police spoke with Albany and Schenectady law enforcement officials concerning the defendant and the Marilee Wilson case, and asked for photographs of Marilee Wilson's body, and received them before the May 21, 1981 Crodelle interview. Moreover, the police knew that defendant worked in the office in which Donna Payant was believed to have been killed, and that the defendant's duties, among others, included transporting refuse bags for their eventual delivery to the Amenia landfill.

in connection with the Payant case, prompting his appellate attorney, Anthony Adang, to telephone the prison the following day concerning the questioning of the defendant.

Defendant also claims that apart from the failure to warn him while he was allegedly in custody, he could not be lawfully questioned in the absence of the attorney then handling defendant's 1977 rape conviction, ² and that the cases of People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 and People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, together create a Sixth Amendment right to counsel, non-waivable in the absence of counsel [see People v. Johnson, 89 A.D.2d 812, 453 N.Y.S.2d 537].

While the Hobson court limited its holding to custodial questioning [39 N.Y.2d p. 483, 384 N.Y.S.2d 419, 348 N.E.2d 894], and expressly held that the right is not operative when the defendant is represented by counsel in a proceeding unrelated to the charges under investigation [p. 483, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Hetherington, 27 N.Y.2d 242, 245, 317 N.Y.S.2d 1, 265 N.E.2d 530], subsequent decisions have extinguished those limitations and have extended both facets of the rule. Defendant argues, therefore, that even if he was not "in police custody" during the May 21, 1981 Crodelle interview, the Sixth Amendment prohibition would attach, and with it the Hobson extension [People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709] if it be found that while at Green Haven on May 21, 1981, the defendant had an attorney in an active but unrelated appellate case. This formulation is close to, but goes somewhat beyond, the one which the Appellate Division, Fourth Department, thought impossible and illogical, when rejecting it in People v. [Ronald] Smith, 79 A.D.2d 210, 436 N.Y.S.2d 519--a decision reversed by the Court of Appeals [54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823].

Indeed, the Sixth Amendment has been ruled to attach when counsel actually interposes himself in a case under investigation, even though the defendant is not in custody [People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501; People v. Ellis, App.Div., --- N.Y.S.2d ----, 1st Dept., N.Y.L.J., 12/22/82], or when a defendant, though not in custody, has expressed a desire for an attorney [People v. Johnson, 79 A.D.2d 201, 436 N.Y.S.2d 486].

None of the above cited cases are by themselves controlling, because none have gone so far as to hold that a non-custodial defendant who has an attorney in an unrelated pending appeal may not be questioned absent a waiver in the presence of counsel. Indeed, one court has flatly refused to go that far [People v. Hauswirth, 89 A.D.2d 357, 455 N.Y.S.2d 442], asserting that to do so would be to grant "a special privilege to those who have had repeated contacts with the law." ³

We therefore examine the issue of custodial interrogation, which is pivotal. Tallying up, we find: (a) When defendant was questioned on May 21, 1981, the police knew or believed that Donna Payant was bitten and mutilated, and the police had information that the defendant had, in the past, committed a similar crime or crimes; (b) She was killed in the very office to which the defendant had been...