People v. Sugden

• Decision Date: 20 December 1974
• Citation: 35 N.Y.2d 453,363 N.Y.S.2d 923,323 N.E.2d 169
• Parties: , 323 N.E.2d 169 The PEOPLE of the State of New York, Respondent, v. James SUGDEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 923

363 N.Y.S.2d 923

35 N.Y.2d 453, 323 N.E.2d 169

The PEOPLE of the State of New York, Respondent, v. James SUGDEN, Appellant.

Court of Appeals of New York.

Dec. 20, 1974.

John Harold Gross, for appellant.

Henry G. Wenzel, III, Dist. Atty. (John M. Lockwood, Riverhead, of counsel), for respondent.

BREITEL, Chief Judge.

Defendant appeals from a conviction for murder (Penal Law, Consol.Laws, c. 40, § 1205.25, subd. 1) after a jury trial and a sentence from 20 years to life imprisonment.

An issue is whether an expert may base his opinion on an out-of-court written statement of a witness who testified at the trial. Also presented is the admissibility of a statement and re-enactment of the crime by a defendant, obtained in the absence of counsel, after a court order authorizing a defendant's removal from county fail for the purpose of assisting the police investigation in this case.

There should be an affirmance. A prosecution psychiatrist may, in part, base his opinion that a defendant was criminally responsible upon a prior out-of-court written statement of a trial witness. Assuming that defendant's statement and reenactment were obtained in violation of the right to counsel, its introduction, at a trial confined to the insanity defense, was harmless error.

The evidentiary facts of the killing are undisputed. Defendant, aged 20, and others were members of a group self-styled as 'God's Gifts' who 'hung out' at a shopping center in Huntington in Suffolk County. To steal from his home, defendant and one Dan Mace visited an acquaintance, the deceased victim Lawrence Fitzgerald. Fitzgerald, aged 13 and suspended from school, admitted defendant and Mace. As part of his plan defendant decided to get Fitzgerald 'high' and sent him to purchase glue. Upon his return, Fitzgerald and defendant began 'sniffing' glue. Later, defendant telephoned a member of the group, Patricia Berglund, and asked her to bring an automobile to the Fitzgerald home. Patricia, with her infant child, and her friend Rosemary Knox, who drove the automobile, picked up Mace, Fitzgerald and defendant, and later one Clifford Graebe. They all drove to an uninhabited partially-wooded area of Huntington.

Upon arrival, defendant, Patricia, and Fitzgerald left the car and walked down a path. At a sandpit, out of view of the others, defendant, in the presence of Patricia, struck Fitzgerald on the head with a cement block. Because the victim was alive and actively resisting, defendant stabbed him several times with a carving knife stolen from the Fitzgerald home. He then again struck the boy on the head with the cement block.

Defendant, with Patricia's help and that of Graebe, who had now arrived at the sandpit, covered the body with brush. Defendant, after throwing the knife away, and the two others returned to the car. There defendant told the rest of his companions that he had killed Fitzgerald. The party drove off and eventually went their separate ways.

The crime, the facts of which were never in contention, is almost unmatched in the annals. Perhaps the most bizarre is the only evidence of motive ever developed: defendant was hoping to elevate his status as a criminal and needed a test run to see if he had the professional capacity to kill a human being, if the need should arise in some future contemplated activity. Oddly, the crime was resolved simply, but not as gorily, as befit the mentality which had conceived its design.

The body was found by a passerby. The ensuing police investigation, pinpointed by information volunteered by Rosemary Knox, led to defendant, by then in the county jail serving a sentence on an unrelated charge. Defendant agreed to speak with the police. Before the interrogation he was advised about, and expressly waived, both his privilege against self incrimination and right to counsel. During the interview with a Detective Halverson, defendant gave a complete, voluble, and inculpatory account of the crime.

The next day Detective Halverson obtained a court order directing defendant's release to the officer's custody to revisit the scene of the crime. Defendant signed a written statement agreeing to assist the police. During the unsuccessful search for the knife defendant 'walked through' the crime and was then returned to the county jail. After again being given the requisite preinterrogation admonitions defendant again waived his rights and signed a seven-page statement written by Detective Halverson.

At trial, legal insanity was the only defense. Defendant testified that he had taken mescaline before visiting Fitzgerald. According to defendant, when he killed the victim he was hallucinating and believed he was killing a giant grasshopper. Defendant also testified to extensive drug use, past criminal and other bizarre conduct, and family difficulties, especially with his father. A defense psychiatrist offered his opinion that defendant was legally insane.

In rebuttal, the prosecution offered the testimony of a psychiatrist, Dr. Harold Zolan. He concluded that defendant was legally sane, basing his opinion, Inter alia, on the written statement of Patricia Berglund.

The defendant was found guilty.

Recently, in People, v. Stone, 35 N.Y.2d 69, 74--75, 358 N.Y.S.2d 737, 740--742, 315 N.E.2d 787, 790--791, the court held that a psychiatrist, after rendering a legally competent opinion, could further support that opinion by reference to medically relevant, albeit hearsay, evidence. The hearsay in Stone consisted of interviews, by the psychiatrist, with 12 persons, including defendant's friends and acquaintances, two police officers present when defendant signed a confession, and two physicians. Four of the persons interviewed did not testify at the trial.

In the present case, the prosecution psychiatrist, Dr. Zolan, interviewed defendant for three hours. He also examined a psychologist's report about defendant when aged seven, other psychiatric and medical reports, defendant's written confession, and written statements of four of the persons involved in vary ing degrees in the crime. Only one of the last four persons, Dan Mace, did not testify at the trial.

Dr. Zolan admitted on cross-examination that his opinion was, in part, based upon the statement of Patricia Berglund. She had testified at the trial and was subjected to extensive cross-examination. At the outset of her cross-examination, defense counsel was given her written statement relied upon by Dr. Zolan. Thus there was full opportunity to cross-examine the witness on her prior statement.

During Dr. Zolan's cross-examination defense counsel was offered, but refused, an opportunity to reread Patricia's statement and to inquire about any difference between it and her trial testimony bearing on Dr, Zolan's opinion. Of course, the jury had the benefit of the direct and cross-examination of Dr. Zolan and Patricia Berglund. Under these circumstances, it is difficult to perceive any prejudice to defendant, and none has been shown.

Defendant moved to strike Dr. Zolan's testimony because of the partial reliance on Patricia's out-of-court statement by the prosecution psychiatrist. The motion was correctly denied.

True, at one time the courts in this State had prohibited an expert from expressing an opinion based upon material not in evidence (see People v. Samuels, 302 N.Y. 163, 172, 96 N.E.2d 757, 762; People v. Keough, 276 N.Y. 141, 146, 11 N.E.2d 570, 572). More recently however, in People v. DiPiazza, 24 N.Y.2d 342, 351, 300 N.Y.S.2d 545, 552, 248 N.E.2d 412, 417, the court held that a psychiatrist could, in giving his opinion, rely, in part, upon pretrial psychological and medical tests and examinations never introduced in evidence. Notably, and as already observed, the reasoning of the court, in People v. Stone, 35 N.Y.2d 69, 74--75, 358 N.Y.S.2d 737, 740--742, 315 N.E.2d 787, 790--791, Supra, arguably suggested that a psychiatrist might give a legally competent opinion without reliance exclusively upon observation of the defendant and facts in evidence.

Both the Stone and DiPiazza cases reflect to some degree a policy which would allow an expert to base his opinion on material not in evidence, provided the data relied upon is of the kind ordinarily accepted by experts in the field (see Proposed Federal Rules of Evidence, rule 703; see, generally, Rheingold, Basis of Medical Testimony, 15 Vand.L.Rev. 473, 494--514, 527--531; McCormick, Evidence (1st ed.), § 15, at p. 33). The policy, however, in a proper case must yield to a defendant's right to confront the witnesses against him.

The right to confront witnesses in a criminal case is not one without narrow and cautious exceptions. The book entries and public records rules, available on the civil side, are also available on the criminal side (People v. Foster, 27 N.Y.2d 47, 52, 313 N.Y.S.2d 384, 388, 261 N.E.2d 389, 391; People v. Semenza, 221 App.Div. 79, 81, 222 N.Y.S. 616, 619; People v. Nisonoff, 293 N.Y. 597, 602--604, 59 N.E.2d 420, 422--423; cf. People v. Burgess, 244 N.Y. 472, 479--481, 155 N.E. 745, 748--749; People v. Reese, 258 N.Y. 89, 96, 179 N.E. 305, 306). Statements made by coconspirators in furtherance of the conspiracy, even if not truly verbal acts but assertions of fact, are generally admissible (see People v. Ryan, 263 N.Y. 298, 305, 189 N.E. 225, 227; People v. Davis, 56 N.Y. 95, 103). Dying declarations have long been admissible in the criminal case (People v. Corey, 157 N.Y. 332, 347--348, 51 N.E. 1024, 1028--1029; Mattox v. United States, 156 U.S. 237, 243--244, 15 S.Ct. 337, 39 L.Ed. 409). Some of the varieties of out-of-court spontaneous declarations, loosely-dubbed as part of the Res gestae, have also been allowed in criminal cases (see e.g., People v. Del Vermo, 192 N.Y. 470, 483--488, 85 N.E. 690, 695--697). The limited admissibility of a codefendant's confessions on a joint trial also suggests a parallel of the problem, namely, admissibility if the...