People v. Watson

• Decision Date: 09 April 1984
• Citation: 100 A.D.2d 452,474 N.Y.S.2d 978
• Parties: The PEOPLE, etc., Respondent, v. Sherman WATSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 978

474 N.Y.S.2d 978

100 A.D.2d 452

The PEOPLE, etc., Respondent, v. Sherman WATSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 9, 1984.

William E. Hellerstein, New York City (Barry S. Stendig, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Michael J. Halberstam, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, O'CONNOR and BROWN, JJ.

MANGANO, Justice.

On this appeal from a judgment convicting defendant of the crime of murder in the second degree (two counts), he contends, inter alia, that Criminal Term committed reversible error in (1) denying those branches his motion which sought to suppress the victim's watch, the defendant's statement of February 17, 1980 and the fruits of a search conducted on February 19, 1980 pursuant to a search warrant and (2) admitting into evidence at trial, under the present sense impression exception to the hearsay rule, a telephone conversation between the victim's friend and the victim shortly before her murder.

We hold that (1) the victim's watch and the statement made by the defendant on February 17, 1980 must be suppressed and (2) the present sense impression exception to the hearsay rule is not applicable to the facts at bar and, therefore, the victim's friend should not have been allowed to testify at the trial with regard to a telephone conversation with the victim shortly before her murder. Accordingly, the judgment must be reversed and a new trial ordered.

I

Defendant's conviction of the crime of murder in the second degree arose out of the fatal beating of Mavis Carter sometime between 1:00 P.M. on February 15, 1980 and 1:00 P.M. on February 16, 1980. The victim was found in the bathroom of her apartment and the medical testimony established that she had been beaten to death with a blunt instrument. The door to the victim's apartment was found open with no evidence of forced entry.

At a combined Mapp-Huntley hearing conducted in February, 1981, the detective in charge of the murder investigation testified that on February 16, 1980, during the course of his investigation, he went to the building in which the victim lived, in order to interview the superintendent. The defendant identified himself as the superintendent and stated that his name was Robert Watson. The detective advised the defendant that elimination fingerprints would be taken the following day of anyone who had legitimate access to the apartment.

On February 17, 1980, the defendant accompanied the detective to the police precinct, where elimination fingerprints were taken. The detective obtained defendant's date of birth, and during the fingerprinting, submitted this information and the name Robert Watson to the Bureau of Criminal Identification. The detective learned that the 77th precinct had a "wanted" card for robbery for one Sherman Watson, with defendant's date of birth. Upon inquiry of the 77th precinct, the detective was advised that the "wanted" card was active. Upon subsequent inquiry, defendant admitted that his name was Sherman Watson and not Robert Watson.

The detective then told defendant that there was a "wanted" card for him for robbery and read him his Miranda rights. The defendant was also told that he could not leave the precinct. Defendant denied knowledge of any robbery.

The detective then searched the defendant and found an antique gold watch in his pocket. The watch had an "M" inscribed on the case and a crystal missing. The detective took the watch to another room, in which the victim's daughter and son-in-law were present for the purpose of elimination fingerprinting. The daughter identified it as her mother's watch and told the detective that she had seen it in her mother's apartment about two weeks earlier.

The detective returned to the defendant a few minutes later and upon further questioning regarding the watch, defendant stated that it had been given to him about two months earlier by a girl who lived on Empire Boulevard near Troy Avenue. Defendant also denied that he had been in the victim's apartment on the day of the crime and offered an alibi. The detective observed some blood spots on defendant's tan shoes. The defendant explained the blood spots on his shoes by stating that he had broken up a fight in the apartment building several weeks earlier, and that a girl involved in that altercation had been bleeding.

At some point during this session at the precinct, the detective ascertained that the wanted card had been canceled. ¹

The defendant was released from police custody shortly thereafter, but before leaving the precinct he consented to a police search of his apartment. During a quick search of defendant's apartment the detective found a shirt which appeared to be stained with blood. However, the detective did not take the shirt or arrest the defendant at that time.

On February 19, 1980, the detective applied for and obtained a search warrant authorizing a search of defendant's apartment for the tan shoes with the apparent blood stains which defendant had worn in the precinct two days earlier. The application for the search warrant listed the following factors in support thereof:

"That on February 15, 1980, the deceased told [a named witness] of Bklyn, N.Y., that the superintendent, Sherman Watson of 2921 Tilden Ave., Bklyn., N.Y., apt. 1D was in the deceased's apartment to fix a leak. This information was given to your deponent by [the witness].

"That on February 17, 1980, your deponent observed Sherman Watson to be in possession of a pocket watch identified by * * * the deceased's daughter, as belonging to the deceased.

"That on February 17, 1980, your deponent saw a spot of what appeared to be blood on Sherman Watson's shoe".

The detective executed the search warrant later that day. During the course of the search, he seized the shirt, which he had observed in the apartment two days earlier, from a hamper, and recovered a blood stained pair of black rubber boots from between the boxspring and frame of defendant's bed. From within the left boot, the detective seized a blood stained pair of pliers with a blue vinyl handle. The detective arranged for a forensic field team to test these items for the presence of blood. The test showed the presence of blood. The detective also testified that in searching the premises he did not search any areas or enclosures in which the tan shoes could not fit.

The next day, i.e., February 20, 1980, defendant was arrested at his apartment by the detective, and another set of pliers was seized from a windowsill. At the precinct, the detective read the defendant his Miranda rights, and took defendant's tan shoes which he was wearing. The defendant expressed a desire to speak to the detective's commanding officer. The defendant admitted that he owned the boots and pliers and stated that he last used the boots to fix a flood in the basement of the apartment house and used the pliers to fix mailboxes. The defendant also told the detective's commanding officer that he was in his girlfriend's apartment on the day of the murder getting "high". The interrogation ended when the defendant asked to call an attorney.

At the combined Mapp-Huntley hearing, defendant's counsel moved to suppress, inter alia, (1) the victim's watch taken from defendant's person at the precinct on February 17, 1980, as well as the statement given by the defendant to the detective at the precinct on that date, and (2) the blood stained rubber boots and pliers discovered by the police during the execution of the search warrant on February 19, 1980. ²

With respect to the victim's watch and defendant's statement of February 17, 1980, counsel argued that (1) since the wanted card was canceled, the defendant's arrest for robbery on February 17, 1980 was without probable cause and therefore unlawful and (2) the watch and defendant's statement of that date had to be suppressed as the fruits of an illegal arrest.

With respect to the black rubber boots and pliers, defendant's counsel, in moving to "controvert the warrant", inter alia, argued that the items were impermissibly seized, since the search warrant only authorized a search of defendant's apartment for the purpose of locating the tan shoes worn by defendant at the precinct on February 17, 1980.

With respect to the defendant's arrest for robbery on February 17, 1980 based on a "wanted" card which was subsequently discovered to have been canceled, Criminal Term relied on People v. Lent, 105 Misc.2d 831, 433 N.Y.S.2d 538 and held that although the detective did eventually learn that the wanted card was invalid, his search of the defendant was made at a point in time when the detective had a good faith belief that defendant was wanted for robbery. Criminal Term also held that defendant's statement to the detective on February 17, 1980 was voluntary and was made after Miranda rights had been given. Accordingly, Criminal Term denied defendant's motion to suppress the victim's watch and defendant's statement of February 17, 1980.

With respect to the boots and pliers seized during the execution of the search warrant on February 19, 1980, Criminal Term held that (1) there was "sufficient probable cause" for the issuance of the search warrant and (2) on the authority of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, the black rubber boots and pliers were properly seized, since they were inadvertently stumbled on and observed in plain view "at a time the police were still looking for the authorized object of their search".

Following Criminal Term's ruling on the motion to suppress, ³ the prosecutor advised the court that he would seek to introduce evidence of a telephone conservation between a friend of the victim and the victim, shortly before her murder.

The court then read a statement given to the District...