People v. Whitaker

• Decision Date: 09 June 1980
• Citation: 75 A.D.2d 111,428 N.Y.S.2d 691
• Parties: The PEOPLE, etc., Respondent, v. John WHITAKER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 691

428 N.Y.S.2d 691

75 A.D.2d 111

The PEOPLE, etc., Respondent, v. John WHITAKER, Appellant.

Supreme Court, Appellate Division, Second Department.

June 9, 1980.

Barry Gene Rhodes, Brooklyn, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Peter Weinstein, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, TITONE and MANGANO, JJ.

TITONE, Justice.

In People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (decided October 23, 1979), the Court of Appeals held that once an attorney has entered a criminal proceeding, thereby signifying that the police should cease questioning, a defendant may not be further interrogated in the absence of counsel even when the interrogation concerns matters unrelated to the charge for which he is already represented by counsel. The principal question presented on appeal is whether the rule enunciated in Rogers should be applied retroactively or only prospectively. Appellant's judgment of conviction for the crimes of murder in the second degree, three counts of robbery in the first degree, and criminal possession of a weapon in the second degree, was rendered on February 28, 1977, after a jury verdict, or almost 32 months prior to the Court of Appeals' determination in People v. Rogers (supra ). I conclude that the determination of the Court of Appeals in Rogers applies even though the trial and judgment of conviction of appellant antedates such determination. Accordingly, the judgment must be reversed and the case remitted for a new trial.

In the early evening of January 4, 1976, Charles Hill, a correction officer and part owner of the Moulin Rouge Bar in Brooklyn, was seated near the middle of the bar. At about 6:05 P.M. three strangers entered the establishment. One of them, a man dressed in a three-quarter length dark leather jacket, struck up a conversation with Hill. Approximately 15 to 25 minutes later, a shot rang out. The patrons, all turning toward the sound, saw Hill appear to rise from his barstool, gasp, fall first into the arms of the stranger in the dark leather jacket, and then fall to the floor dead. They also noticed that the stranger had a gun in his hands. The three intruders proceeded to hold the other occupants of the bar at gunpoint and take money from the cash register, and money and personal property from the patrons. Shortly thereafter the three escaped in the Cadillac of one of the patrons.

Early in the investigation of the murder of Hill and the robbery at the bar, a police officer received confidential information that one Lindsay Webb had fired the fatal shot at Hill. Webb was arrested on the morning of January 24, 1976 and brought to the police precinct. It was then decided by Detective Anthony Martin to hold a lineup in which Webb would be included. Three of the eyewitnesses to the shooting, Shiloh, Cooke, and Dukes, would be asked at the lineup of they could identify the person who killed Hill.

However, Martin encountered some difficulty in finding police officers who resembled Webb to participate in the lineup. As a result he arranged with two other detectives to use two prisoners they had in custody as stand-ins at the lineup. One of the prisoners was appellant, John Whitaker, who had been arrested for the murder of one Harriet Gathers.

Dukes, Shiloh and Cooke viewed the lineup. The first two could make no identification. However, Cooke, to the surprise of the police officers present, identified Whitaker, not Webb, as the one who shot Hill. Then Shiloh, without speaking to Cooke, asked to view the lineup again. He was permitted to do so. On the second viewing Shiloh also selected appellant as the one who committed the homicide. At the trial both Cooke and Shiloh again identified appellant as the perpetrator.

Between January 24, 1976, the date the lineup was held, and February 24, 1976, appellant, under arrest for the Gathers homicide, made two telephone calls to Detective Clarence Crabb, his arresting officer. Each time appellant urgently asked Crabb to see him. Appellant expressed annoyance that Crabb had helped "put my tail in the soup" by extracting a statement from him relating to the Gathers homicide.

On February 24 Crabb responded to appellant's request to speak to him by meeting him in the ninth floor pens in the Criminal Court Building during luncheon recess. Crabb refused to discuss the Gathers case with appellant ostensibly because the latter was represented by counsel and already under indictment in that case. However, Crabb described the events of the Hill homicide, advised appellant of his rights, and asked him if he wished to discuss it. Appellant confessed to having killed Hill notwithstanding that Crabb warned him six times that he was making no promises in return for the confession. After the Huntley hearing was concluded, the court found that appellant was not represented by an attorney in connection with the instant case when he made the confession and that it was voluntarily given. Accordingly, the trial court denied appellant's motion to suppress it. After the trial the jury found appellant guilty of murder in the second degree, three counts of robbery in the first degree and criminal possession of a weapon in the second degree.

From the factual recitation above, it is manifest that the eliciting of a confession by Detective Crabb from appellant at a time when he was represented by counsel in an unrelated criminal case, is encompassed within the four corners of the rule enunciated in Rogers proscribing such mode of police action. Speaking for the majority in Rogers, Chief Judge COOKE clearly, unequivocally and succinctly held (p. 173, 422 N.Y.S.2d p. 21, 397 N.E.2d p. 713):

"Our acknowledgment of an accused's right to the presence of counsel, even when the interrogation concerns unrelated matters, represents no great quantitative change in the protection we have extended to the individual as a shield against the awesome and sometimes coercive force of the State. An attorney is charged with protecting the rights of his client and it would be to ignore reality to deny the role of counsel when the particular episode of questioning does not concern the pending charge * * * Once a defendant has an attorney as advocate of his rights, the attorney's function cannot be negated by the simple expedient of questioning in his absence." (Emphasis supplied.)

Having determined that the police interrogation in Rogers was improper, the Chief Judge then turned to the question of whether defendant's inculpatory statement was admissible as a spontaneously volunteered statement within the purview of People v. Hobson, 39 N.Y.2d 479, 483, 384 N.Y.S.2d 419, 348 N.E.2d 894. In the opinion of the Chief Judge (48 N.Y.2d p. 174, 422 N.Y.S.2d p. 22, 397 N.E.2d p. 713), in order for an accused's statement "(t)o fit within this narrow exception, the 'spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed' ", citing People v. Maerling, 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 385 N.E.2d 1245.

In the instant case Detective Crabb knew and for that matter told appellant, that he could not speak to the latter regarding the Gathers case for which appellant was already under indictment and represented by counsel. He could have either told appellant as much over the telephone or simply refrained from making any response to appellant's requests to visit him. Instead, Crabb visited appellant in his cell and once there used the Gathers case as a pretext to encourage appellant to discuss the Hill homicide with him face to face. I consider it significant that neither Crabb nor appellant ever mentioned the Hill homicide during their two telephone conversations which led up to their meeting in one of the pens located in the courthouse, and that Crabb admittedly obtained specific approval from his superior officers and an assistant district attorney to speak to appellant about the Hill homicide at any ensuing meeting. Accordingly, under both the circumstances and the aegis of the Rogers case, the police interrogation herein was clearly improper and the confession stemming therefrom was not admissible in evidence as a "spontaneously volunteered statement."

Before delving into the labyrinth of appellate court determinations pertaining to retroactive or prospective application of decisions in landmark criminal cases involving the constitutional rights of the accused to counsel, I believe it is essential that I briefly discuss the Court of Appeals pronouncements culminating in Rogers, with respect to the questioning of an accused in custody in the absence of his attorney.

In People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 539, 239 N.E.2d 537, 666, the Court of Appeals in reversing defendant's conviction for attempted murder in the second degree and ordering a new trial, enunciated the broad rule that "(o)nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel".

However, such seemingly broad mandate was narrowed in scope by the same court in People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630. In Taylor, defendants were represented by assigned counsel for a robbery for which they were being held in custody. During their incarceration, law enforcement officers, after advising defendants of their rights under Miranda, questioned them about another crime (murder) and succeeded in obtaining inculpatory statements from them, all in the absence of their attorneys.

In upholding the First Department's denial of their motion to suppress the inculpatory statements, the Court of Appeals held, inter alia, that (1) inasmuch as no criminal proceeding had been commenced against defendants for the crime of murder at the time of questioning, their...