People v. Smith

• Decision Date: 07 June 1983
• Parties: , 451 N.E.2d 157 The PEOPLE of the State of New York, Respondent, v. Lemuel SMITH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 399

464 N.Y.S.2d 399

59 N.Y.2d 156, 451 N.E.2d 157

The PEOPLE of the State of New York, Respondent, v. Lemuel SMITH, Appellant.

Court of Appeals of New York.

June 7, 1983.

Douglas P. Rutnik, Public Defender, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

Defendant, convicted of two murders and sentenced to consecutive terms of 25 years to life for each murder, appeals. He asserts that on the jury trial he was deprived of the effective assistance of counsel and that a stipulation designed to keep secret a transcript revealing defendant's participation in other crimes was breached.

On November 24, 1976, at approximately 3:00 p.m., Robert Hedderman and Margaret Byron were murdered while working at the Hedderman Religious Shop located at 50 Columbia Street in Albany. The murderer slit both victims' throats after stabbing them several times in the chest.

During the course of the intensive investigation which followed these murders, the defendant was questioned and released. Upon further investigation, however, evidence came to light implicating defendant. Mr. William Weber told the police that he saw a "wild-eyed" black male approximately six feet tall in Hedderman's store on November 24, 1976, standing near the body of Margaret Byron. Later, after being shown a lineup photograph, Mr. Weber identified defendant as that man. Maureen Toomey informed the police that she observed a black man leaving the Hedderman Religious Shop at approximately the time of the slayings. In September, 1977, she was taken to police headquarters where she was shown a lineup photograph containing pictures of six men and asked whether she recognized the man she saw leaving the Hedderman store that day. She pointed to defendant's photo. Also in September 1977, Lieutenant Murray of the Albany Police Department, while conducting an authorized search of a building where defendant had been employed, discovered one of defendant's sweaters in a closet. A hair found on the sweater was sent to the FBI laboratory in Washington for testing. The FBI report indicated that the hair found on defendant's clothing was that of the deceased, Margaret Byron.

Meanwhile, defendant had been indicted by a Schenectady County Grand Jury for the kidnapping and attempted robbery of Marlene Maggio. Defendant had been arrested several hours after the abduction while still holding the victim. In September, 1977, he retained counsel to represent him on the Schenectady County charges.

Thereupon, his counsel met with the District Attorneys of Schenectady, Albany and Saratoga Counties in an attempt to negotiate a plea bargain concerning crimes defendant had allegedly committed in all three jurisdictions, including the Hedderman-Byron homicides for which defendant had not yet been indicted. The attorney's proposal that defendant receive concurrent sentences of 25 years to life in satisfaction of all charges was rejected. At the same meeting, it was agreed that the Albany County District Attorney's office would assume responsibility for the cost of continuing psychiatric assistance which defendant could not afford but which defense counsel had arranged for defendant through the Schenectady County District Attorney. ¹

After defendant indicated to his psychiatrist, Dr. Camperlengo, and a psychiatric social worker, Diane Kassel, that he was willing to speak to the police, a meeting was arranged for March 5, 1978. Defense counsel agreed to allow defendant to be questioned at that meeting, providing that certain conditions were met. Pursuant to defense counsel's demands, a stipulation was entered into whereby all persons present at the meeting, except defendant and his attorney, were to be considered agents of the Schenectady County District Attorney's office and all statements made thereat were to be kept secret. No disclosure was permitted without the defendant's and his counsel's written consent. The stipulation did allow the Albany County District Attorney, who was not notified of the meeting and did not appear, to be informed of the general substance of defendant's statements. ²

At the meeting, defendant admitted committing several murders, including those at the Hedderman Religious Shop in Albany. The following day, defense counsel and Schenectady County Assistant District Attorney Carey notified Albany County District Attorney Greenberg of the meeting and the fact that defendant had made incriminating statements.

A nonjury trial was held in Schenectady County Court in July, 1978. While preparing for that trial, defense counsel, who decided to assert an insanity defense on defendant's behalf, gave the transcript of the March 5 meeting to Dr. Zvi Klopott, a psychiatrist he planned to use as a defense witness. At the trial, Dr. Klopott testified that the defendant was suffering from a delusion that his deceased brother John lived within him and was responsible for the crimes that defendant had committed. He also testified that, according to the transcript furnished by defense counsel of the March 5 meeting, defendant admitted killing both Robert Hedderman and Margaret Byron in Albany. ³ The trial concluded on July 21, 1978, and the defendant was found guilty.

On July 27, 1978, an Albany County Grand Jury indicted defendant for the murders of Robert Hedderman and Margaret Byron, and in October, 1978 the Albany County District Attorney's office subpoenaed the transcript and tapes of the March 5, 1978 meeting. At a suppression hearing held prior to his Albany County murder trial, defendant unsuccessfully attempted to suppress the transcript and tapes, Maureen Toomey's identification of defendant and the hair found on defendant's clothing. The case then proceeded to trial where defendant's attorney again presented the insanity defense. The defense failed and defendant was convicted and sentenced to consecutive sentences of 25 years to life for each murder.

On this appeal, defendant contends that he was deprived of the effective assistance of counsel, that the trial court erred in its Sandoval ruling, that unqualified opinion testimony was improperly admitted into evidence and that the statements he made at the March 5 meeting were not given voluntarily and should, therefore, have been suppressed. In asserting this last contention, defendant raises a number of overlapping issues involving allegations that the Albany County District Attorney was bound by the March 5 stipulation, that the Schenectady County District Attorney violated the terms of that stipulation, that defendant's statements were not the product of a rational intellect and free will and that defendant inadvertently waived his right against self incrimination due to the ineffective assistance of his counsel.

Preliminarily, we note that the record supports the factual determination by the courts below that defendant's statements were given freely and voluntarily and not as a result of improper police inducement. That issue, therefore, is beyond this court's scope of review. (People v. Taylor, 57 N.Y.2d 729, 454 N.Y.S.2d 976, 440 N.E.2d 1323; cf. People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447.) Furthermore, with respect to defendant's claim of mental incompetence to make the statements, defendant was found to be mentally competent at both his Schenectady and Albany County trials. The affirmance of those factual determinations, which are supported by the record, similarly precludes review by this court.

Defendant's contention that the Schenectady County District Attorney breached the terms of the March 5 stipulation is wholly without merit. Pursuant to the terms of the stipulation, Assistant District Attorney Carey promised not to disclose the details of defendant's statements without the written consent of both defendant and his attorney. Carey scrupulously honored his promise. Contrary to defendant's assertions, the Schenectady County District Attorney's office did not improperly allow Albany County District Attorney Greenberg to obtain a copy of defendant's March 5 statements. The transcript was lawfully subpoenaed by District Attorney Greenberg and only after defendant allowed certain of its contents to be publicly disclosed by Dr. Klopott during his testimony at defendant's prior Schenectady County trial. By permitting Dr. Klopott to disclose the details of those admissions, as he necessarily had to in order to support defendant's insanity defense, the defendant not only waived his physician-patient privilege (People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400; People v. Al-Kanani, 33 N.Y.2d 260, 351 N.Y.S.2d 969, 307 N.E.2d 43), but also made that information a matter of public record. Defendant cannot be heard to claim, therefore, that the Schenectady County District Attorney breached the agreement to keep defendant's incriminating statements secret. There is not a shred of evidence to indicate that the Schenectady County District Attorney's office disclosed any of the details of the March 5 meeting to law enforcement officials, prosecutorial agencies or the public prior to the transcript of that meeting being subpoenaed by the Albany County District Attorney's office.

The defendant argues alternatively that the Albany County District Attorney was bound by the March 5 stipulation and, thus, should not have been allowed to use defendant's admissions against him at the Hedderman-Byron murder trial. In support of this argument, defendant contends that Diane Kassel, the psychiatric social worker who was present at the March 5 meeting and was a party to the stipulation, was an agent of the Albany County District Attorney's office and, therefore, bound that agency to abide by the stipulation. ⁴ While it is true that when asked by the Schenectady County District Attorney to assume financial responsibility for defendant's continuing psychiatric care, including...