People v. Tinning

• Decision Date: 29 December 1988
• Citation: 536 N.Y.S.2d 193,142 A.D.2d 402
• Parties: The PEOPLE of the State of New York, Respondent, v. Marybeth TINNING, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 193

536 N.Y.S.2d 193

142 A.D.2d 402

The PEOPLE of the State of New York, Respondent, v. Marybeth TINNING, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 29, 1988.

Martin Cirincione, Schenectady, for appellant.

John B. Poersch, Dist. Atty., Schenectady, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and MERCURE, JJ.

MERCURE, Justice.

On December 20, 1985, a rescue squad responded to defendant's residence in the City of Schenectady and found defendant's three-month-old daughter, Tami Lynne, lying on the floor, not breathing. Defendant and the child were transported to the hospital where efforts to revive the infant were unsuccessful and she was pronounced dead. Preliminary autopsy reports suggested the cause of the infant's death was SIDS (sudden infant death syndrome or "crib death") or some genetic abnormality, but further study, laboratory tests and consultations caused medical authorities to conclude that Tami Lynne died from asphyxia by suffocation.

Defendant accompanied two police officers for questioning about the circumstances of Tami Lynne's death on February 4, 1986 and admitted to smothering her infant daughter. In addition, defendant confessed to killing two of her other children, Timothy in 1973 and Nathan in 1975, by smothering each with a pillow. ^* An eight-day suppression hearing was held in December 1986 to determine the admissibility of defendant's statements to police, resulting in County Court's rejection of defendant's claim that her statements were involuntary. In addition, just prior to the trial, County Court conducted a hearing, ultimately granting the People's request to present evidence of two prior uncharged crimes by admission of defendant's statements that she had previously smothered Timothy and Nathan.

Defendant was tried over a period of several weeks on two counts of murder in the second degree. The first count alleged an intentional killing of Tami Lynne; the second count alleged that defendant caused the infant's death under circumstances evincing a depraved indifference to human life. Evidence was presented by the People that the cause of Tami Lynne's death was asphyxia by suffocation. The defense presented evidence that the infant's death could be explained by natural causes, including SIDS and Werdnig-Hoffman's disease. The jury found defendant guilty of depraved indifference murder and she was sentenced to an indeterminate term of imprisonment of 20 years to life. This appeal ensued.

Contrary to defendant's claim on this appeal that County Court erred in refusing to suppress her statements because they were not voluntarily given, we conclude, upon examining the "totality of the circumstances" under which the statements were given (Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 1339, 18 L.Ed.2d 423), that the motion was properly denied. It is well settled that the defendant bears the burden of persuasion on a motion to suppress a statement when the People, in the first instance, establish the legality of the police conduct and defendant's knowing and intelligent waiver of her Miranda rights (People v. Knights, 131 A.D.2d 924, 925, 516 N.Y.S.2d 969, lv. denied 70 N.Y.2d 713, 519 N.Y.S.2d 1049, 513 N.E.2d 1317; see, People v. Anderson, 42 N.Y.2d 35, 37-38, 41, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709), and issues of credibility are for the trier of fact (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264).

Our review of the record leads us to conclude that the People have shown the legality of the police conduct. Defendant testified that she willingly accompanied the police officers for questioning and that before leaving home she spoke with her husband, who advised her not to call an attorney. There was testimony, although contradicted by defendant, that defendant was read her Miranda warnings, that she indicated that she understood her rights and that she was not isolated from her family, but was allowed to see and speak with her husband during questioning. Further evidence in the record supported findings that defendant was not handcuffed, threatened or coerced, that she was free to leave and that she did not request an attorney until after she had given oral, written and stenographically recorded statements. County Court, as the trier of fact, could properly find, as it did, that the People met their burden and that defendant did not. Therefore, the motion to suppress was properly denied.

Defendant next maintains that County Court erred in denying her motion to redact her statements to eliminate references to the deaths of the other children. We disagree. Initially, County Court redacted the statement with respect to the deaths of six children and allowed the following statement to be introduced at trial: " * * * Timothy, Nathan and Tami. I smothered each with a pillow because I'm not a good mother. I'm not a good mother * * *." However, because defendant herself presented medical evidence of the natural causes of death of her other children, County Court ruled that the unredacted statement containing defendant's description of the circumstances surrounding the deaths of all nine children was admissible.

Preliminarily, the People contend that defendant has failed to preserve County Court's Molineux ruling (People v. Molineux, 168 N.Y. 264, 61 N.E. 286) for appellate review. We agree. After County Court determined that only a portion of the statement would be introduced, defense counsel stated, "other than the fact repeating again, 'I'm not a good mother', I have no objections to the court's ruling". Thereafter, no timely objection was interposed when County Court admitted the complete transcript of defendant's statement, including evidence of defendant's prior uncharged crimes (see, CPL 470.05 470.15 People v. Brooks, 105 A.D.2d 977, 979, 481 N.Y.S.2d 914). Moreover, were we to review the issue in the interest of justice (see, CPL 470.15 People v. Robinson, 36 N.Y.2d 224, 228-229, 367 N.Y.S.2d 208, 326 N.E.2d 784, amended 37 N.Y.2d 784, 375 N.Y.S.2d 100, 337 N.E.2d 607), we would hold that County Court's ruling was correct since evidence of the circumstances surrounding the deaths of Timothy and Nathan is probative on the issues of intent and absence of mistake or accident (see, People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808, see also, People v. Henson, 33 N.Y.2d 63, 72, 349 N.Y.S.2d 657, 304 N.E.2d 358; People v. Schwartzman, 24 N.Y.2d 241, 247-248, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Kinder, 75 A.D.2d 34, 46, 428 N.Y.S.2d 375). Further, we note that County Court gave very specific and precise instructions, correctly limiting the jury's consideration of evidence of the prior uncharged crimes to the issues of intent and absence of mistake. Thus, even if we determined that County Court's Molineux ruling constituted an error of law, because the evidence was irrelevant in the jury's determination as to whether defendant recklessly smothered the infant, it was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant next contends that the evidence at trial was insufficient to support a jury verdict of murder in the second degree in violation of Penal Law § 125.25(2). The judgment must be supported by evidence that defendant recklessly engaged in conduct which created a grave risk of death to another person and thereby caused death, "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25). The "depraved indifference" element has been established when the evidence shows that defendant, by her conduct, demonstrated a wanton indifference to human life or depravity of mind (see, People v. Gomez, 65 N.Y.2d 9, 11, 489 N.Y.S.2d 156, 478 N.E.2d 759; see also, People v. Register, 60 N.Y.2d 270, 274, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544). In addition, it has been noted that the phrase "under circumstances evincing a depraved indifference to human life" is not a mens rea element focusing on the subjective intent of defendant but, rather, involves an objective evaluation and assessment of the degree of risk presented by defendant's reckless conduct (see, People v. Gomez, supra, 65 N.Y.2d at 11, 489 N.Y.S.2d 156, 478 N.E.2d 759...