People v. Taylor

• Decision Date: 20 April 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert TAYLOR, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 370

450 N.Y.S.2d 370

87 A.D.2d 771

The PEOPLE of the State of New York, Respondent, v. Robert TAYLOR, Defendant-Appellant.

Supreme Court of New York, Appellate Division,

First Department.

April 20, 1982

R. Dolsky, New York City, for respondent. J. I. Golomb, New York City, for appellant.

Judgment, Supreme Court, Bronx County (D. SULLIVAN, J., at trial and sentence; BLOOM, J., at suppression hearing), rendered on December 6, 1979, affirmed.

Order affirmed, --- N.Y.S.2d ---.

SANDLER, J. P., and LUPIANO and MILONAS, JJ., each concur in separate memoranda; and CARRO, J., dissents in a memorandum as follows:

SANDLER, J. (concurring):

If the issue were presented to this court for the first time on this appeal as to whether the record adequately supported the hearing court's determination that the defendant did not request counsel at the time of his interrogation, I would consider the question a close one. There seems to me merit to Justice Carro's argument that the defendant's statement was ambiguous, that the interrogating officer had a duty to clarify its meaning, and that his failure to do so precludes a finding that the People established their heavy burden of proof on the issue. However this issue was previously presented to this court on defendant's appeal from his conviction following the first trial. In reversing and remanding for a new trial, on a separate issue, the court unmistakably rejected defendant's argument on this question and sustained the hearing court's determination. See People v. Taylor, 68 A.D.2d 864, 414 N.Y.S.2d 700. Defendant is here appealing from his conviction following a second trial conducted in accordance with this court's previous determination. As correctly stated by Judge Lupiano, the test to be applied in this situation is whether or not there was manifest error in the prior determination. I am unable to find in the circumstances presented "a manifest error" that would justify reversing a prior determination of this court on the basis of which the second trial was conducted. I have also considered whether or not there have been developments in pertinent legal principles since the decision of this court on the first appeal on March 29, 1979 that would justify a different result now. In People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 (1980), the Court of Appeals for the first time squarely held "that once a suspect in custody requests the assistance of counsel, he may not be questioned further in the absence of an attorney." However, this was not the issue before the court on defendant's appeal from the first conviction, nor is it the issue before us. The law was quite explicit at the time the first appeal was decided that the statement in issue must be suppressed if defendant had requested counsel at the time of the interrogation. See, e.g., People v. Buxton, 44 N.Y.2d 33, 403 N.Y.S.2d 487, 374 N.E.2d 384. And although People v. Cunningham, supra, might arguably suggest a development with regard to a closely related issue that might bear on the question presented, the connection between the two issues seems to me too tenuous to justify a departure from this court's prior determination. Accordingly, and for the reasons indicated, I am in agreement with the majority of the court that the judgment of the Supreme Court, Bronx County (Bloom, J., at suppression hearing; Sullivan, D., J., at trial and sentence) rendered December 6, 1979, convicting defendant, after a jury trial, of murder in the second degree, should be affirmed.

LUPIANO, J. (concurring).

Defendant was indicted for the murder of Mildred Blumenkrantz, committed on December 2, 1974, during the course of a burglary of the decedent's apartment. An omnibus pre-trial hearing as to the admissibility of an eyewitness identification supplied by one Deborah Maynard and the defendant's own statements to police officers following his arrest on December 19, 1974 was held. While the hearing court found certain pre-trial identification procedures to be suggestive, Ms. Maynard's in-court identification of defendant and defendant's statements to the police following his arrest were not suppressed. This evidence was submitted at defendant's first jury trial and resulted in a conviction of murder in the second degree. On appeal to this Court, defendant argued that the in-court identification of defendant by Ms. Maynard should be suppressed and also contended that his inculpatory statements to the police following his arrest must be suppressed because he requested an attorney at the start of the police questioning, thereby interdicting further interrogation in the absence of counsel. Relevant to this latter consideration it was pointed out to us that Detective Silverman was the first officer to question defendant. At the hearing Silverman testified that he advised defendant of his rights orally. Specifically, Detective Silverman, in relevant part, testified that he informed defendant that defendant "had a right to an attorney, if he didn't have an attorney one could be provided free of charge," to which Taylor replied either "I will use a Legal Aid" or "If I need a lawyer, I will use a court lawyer or Legal Aid." Although Detective Silverman could not recall defendant's exact words, he was sure that defendant was not requesting an attorney at that time. Detective Silverman, following this response, informed defendant that "he had a right to an attorney to be present during the questioning" and stated that "he said he understood that." Defendant then proceeded to make admissions to Detective Silverman. Thus on the prior appeal we were confronted by two critical issues: the propriety of Ms. Maynard's in-court identification, and the admissibility of defendant's statements. Regarding this latter issue, the question was simply whether defendant did or did not request an attorney. We concluded that defendant did not request an attorney and, therefore, his statements were admissible, but that Ms. Maynard's in-court identification must be suppressed. It must be noted at this point that the evidence against defendant consisted, to a practical extent, solely of Maynard's eyewitness identification and defendant's own statements to the authorities. Suppression of both would necessarily result in dismissal of the indictment. In our Memorandum for the List disposing of this first appeal, we duly noted that we were reversing the judgment of conviction and directing a new trial, only on the basis that the in-court identification must be suppressed. We approved of the hearing court's granting defendant's pre-trial motion to suppress to the extent of excluding the photographic and show-up identification by the witness Maynard, but overruled said court's determination insofar as it otherwise denied defendant's motion and granted the motion to suppress the in-court identification (People v. Taylor, 68 A.D.2d 864, 414 N.Y.S.2d 700 ). We did not grant defendant's motion to suppress his statements to the police following his arrest. Accordingly a new trial was warranted and we so directed. At the new trial the People's case consisted basically of defendant's confession. No other evidence was introduced which directly incriminated defendant. He again was found guilty by a jury, on the instant appeal, defendant again urges that his incriminating statements must be suppressed on the basis that he was deprived of his right to the assistance of counsel during the interrogation and that it was induced by a promise of leniency. With respect to defendant's claim that he did request an attorney and his statements must accordingly be suppressed because such request was not honored and the interrogation continued in the absence of counsel, such claim is barred by the law of the case and, in any event, is not viable on the merits. We implicitly ruled on such contention upon defendant's appeal from his conviction after the first jury trial (People v. Taylor, supra ). Further, such ruling clearly formed part of the ratio decidendi of our prior appellate decision and did not obtain the character of mere dictum.

"Since the doctrine of res judicata technically requires a final judgment on the merits in one action and an attempted relitigation in a second, it has no application within an action. The doctrine of the 'law of the case' was devised to close that gap. It applies to various stages of the same action or proceeding; its purpose is to avoid the retrial of issues already determined in it. For practical purposes, the doctrine of the law of the case can be considered as a kind of intra-action res judicata .... The law of the case doctrine makes a decided point, within a case, binding not only on the parties, but on all other judges of co-ordinate jurisdiction .... A disposition claiming to be the law of the case will usually be found to be embodied in a court order, but that is not indispensable. If one judge's decision on a point is clear, it concludes other coordinate judges whether embodied in a formal order or not" (Siegel, New York Practice, § 448). "So long as the facts remain the same, a rule of law once laid down by the court of last resort remains the rule throughout the subsequent history of the cause in all its stages except under extraordinary circumstances." (10 Carmody-Wait 2d, N.Y.Prac. § 70; 405).

The doctrine of the law of the case applies to this Court with respect to its own decisions (See, Walker v. Gerli, 257 App.Div. 249, 251, 12 N.Y.S.2d 942).

"It is the general rule that a determination by an appellate court becomes the law of the case, so that upon a subsequent trial or appeal, if the facts appear substantially the same, the prior determination should be followed. This does not mean that a higher court is required to follow the determination of a lower court but does mean that the lower or the same court must abide by the prior determination in the same case .... While it is the duty of an appellate court...