62 Misc. 2d 329 | N.Y.C. Fam. Ct. | 1969
The respondent, Joseph S., 13, is charged with assaulting, on or about 11:45 p.m. on August 18, 1969, one Edward B., 52, in a basement apartment at 218 West 141st St., New York City by striking him on the head with a cane. The respondent is further charged with causing the death of Frank H., age 55, by placing and manipulating a rope round his neck.
On consent of the attorneys, the medical examiner’s report and autopsy were accepted info evidence and a stipulation entered into by both counsel that the cause of death of Frank H. was due to ‘6 strangulation by rope with fracture of the Larynx, Homi
The petitioner is the detective with the Police Department, who placed the respondent under arrest on August 19,1969 after the police investigation and interrogation of the respondent and several other persons had been completed, for committing acts, which if done by an adult would constitute the crime or crimes of assault and homicide, in accordance with the provisions of article 7 of the Family Court Act.
Undisputed testimony contained in the following brief summary of the facts, not contradicted by the respondent, who did not take the stand, or his witnesses (his mother and 17-year-old sister), and based on the credible evidence of all the witnesses on direct, cross-examination and redirect, is substantially as follows:
The respondent was in the basement apartment when the police arrived in answer to a call about a dead man at the premises in question around 11:45 p.m, on the night of August 18, 1969. The police had been summoned by a friend of the respondent’s mother after respondent had told her that he had found a dead body at 218 West 141st Street. The respondent had also informed his mother and sister several hours earlier of this occurrence. At their request, respondent returned home a short time later, where the matter was discussed with his mother and older brother, who admonished him to remain in the house. The respondent refused and returned to the basement apartment where he was found by the police, along with the unidentified male, black, age 19, later identified as Charles H.; Edward B. the victim of the assault, who was asleep; and the deceased Frank H. in the rear bedroom. Edward B. had been hired by one Pearl H., the owner of the apartment building to be the superintendent, since her husband had died several months earlier. The respondent had been taking guitar lessons from Pearl H. ’s deceased husband. On the fateful day in question, Pearl H. had promised to give Joseph S. her husband’s guitar, which he was to pick up that evening when she returned from Brooklyn with it. Pearl EL, a cousin of the deceased, identified the body for the police.
The respondent and the other boy known as Charles EE. left the apartment around 12 midnight. When the policeman came out of the apartment at 2:30 a.m. on August 19, 1969 after completing his initial investigation, the respondent was sitting on the front stoop. Joseph S. approached the officer and said he wished to speak to him. The respondent then told the police officer voluntarily that he had seen two boys come into the apartment and
Mrs. S. was informed and, accompanied by her daughter, was taken to the police station. William C., Charles H., and Pearl H. were also taken to the police station at this time. The police officer had a difficult time arousing Edward B., the victim of the assault, who was first taken to the emergency room of the hospital for treatment where he was found to have a head wound in the middle of the scalp, no hair at the place of the wound, and blood on his shirt. Edward B. was subsequently taken to the police station. In the course of the police investigation, the respondent told the officer that one Rodney R. had forced him to strangle the deceased, after telling him to only tighten the rope to scare the deceased. The police immediately checked their criminal files and found a picture of Rodney R., 24, male, Negro, which they showed to the respondent who stated that that was the man that forced him to strangle the deceased. The police immediately visited the home of Rodney R. where they were informed by Rodney’s mother that her son had been confined in Auburn State Prison for the past four and one-half months which the police verified.
When Edward B. first stepped into the police squad room on the second floor of the station he immediately and spontaneously identified the respondent who already was in the squad room with Charles H., the other young Negro found in the apartment upon the initial entry of the police. Edward B. saw the respondent and shouted “ That’s the boy that did it. Lock him up. There is the one who hit me right here — he is the one ”. Up until this point when the identification was made by Edward B., the respondent was still not a suspect, only a witness along with several others brought to the police station for the normal pretrial investigation.
Edward B., the victim of the assault, had testified on direct examination for the People that he was sitting in the kitchen of the basement apartment late in the evening of August 18, 1969 when the respondent entered and asked for Pearl H. Edward B. replied he did not know where Pearl H. was. The respondent then demanded the guitar or $5. Edward B. replied he knew nothing about the guitar or $5; whereupon the respond
The respondent was brought into a small coffee room off the squad room on the second floor of the police station immediately after Edward B., the victim of the assault, had identified him. The petitioner said to him, “ You hear what they are saying. Why don’t you tell me what happened? ” According to the testimony of the detective and the patrolman first at the scene who also was present in the squad room at the interrogation, the respondent was told his rights and given the Miranda warnings which were read to him from a poster on the wall. These rulés recite that the accused has a right to remain silent; that any statement he does make may be used as evidence against him; that he has a right to the presence of an attorney either retained or appointed (Miranda v. Arizona, 384 U. S. 436). His mother was not present in the room, but was sitting outside in the squad room about 10 feet away. Her testimony was that she asked to go into the room with her son but was refused. She also testified she was never given the Miranda warnings nor did she at any time ever hear them being given to her son. The petitioner testified that the respondent, when asked if he understood each Miranda warning, replied or reacted with a shrug of his shoulders. The specific answer as to whether he wanted an attorney present, either paid or furnished, was a shrug of the shoulders. The respondent then proceeded to tell the detective he was down in the basement and had hit Edward B. on the head with a walking cane and placed the rope around the neck of Frank H. The petitioner then advised the respondent that he was going to write down the narrative he had just been told. The respondent signed the written confession after it had been read to him by the petitioner at around 6 or 7 a.m.
The defense has brought on six preliminary motions for criminal pretrial discovery and inspection. Four of these motions were disposed of by stipulation and agreement of the attorneys for both sides and are not presently at issue in the instant case. The two remaining motions are: 1. A motion to suppress the show-up identification. 2. A motion to suppress the written corn fession. Both of these motions have a direct bearing on the fact-finding hearing conducted hereunder to determine if the respondent is a juvenile delinquent.
The motion to suppress the show-up identification is denied. This motion is based on three famous unprecedented United States Supreme Court decisions which are usually referred to as Wade hearings. These cases held that a defendant and his counsel should be notified of any impending lineup in a police station (out-of-court identification procedure) and that counsel’s presence is a requisite to the conduct of a lineup, absent an intelligent waiver. (United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Stovall v. Denno, 388 U. S. 293.)
In so ruling, the court noted that eyewitness identification can be one of the most unreliable forms of proof and may result in wrongful convictions. Any confrontation between suspect and witness is critical and counsel is required. (Stovall v. Denno, supra, p. 298.) Clearly, the court has taken a police investigatory tool and indorsed it with the full weight of the constitutional requirements and judicial review. (People v. Cohen, 60 Misc 2d 706.) In the case at bar, this was not a show-up nor was the respondent placed in any lineup. Hence, it was not required that he be represented by counsel. There was no formal lineup at the station house and no violations of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Nor were the police procedures deliberate or plcmned. Edward B. was not asked specifically to come to the police station to identify a suspect at the time of his immediate identification of the respondent when he first saw him in the squad room. There were several possible witnesses or persons there whom the police had come into contact with in the course of their normal police investigation which had not yet reached the accusatory stage or had focused upon one supsect. There was an instantaneous or spontaneous identification of the respondent by the victim of the assault, which had occurred a few hours earlier and within
The motion to suppress the show-up identification is denied because the police station procedures resulting in the identification of respondent, for the reasons above set forth were not violative of respondent’s constitutional rights nor did they taint in any way, manner or form the in-court identification of the respondent by the victim of the assault. Nor is there any violation against self incrimination under the Gault case. (Matter of Gault, supra; People v. Bryant, supra; People v. Ahmed, supra.)
The motion to suppress the written confession is granted.
In the instant case, fundamental principles of due process were violated insofar as the written confession obtained from him was concerned. The 13-year-old, who according to testimony by his mother was a little hard of hearing and could not read very well, was in a room by himself. His mother was not in the room when the written confession was taken from him after hours of sleeplessness, from midnight to 7 or 8 a.m., and, of course, with no counsel present. The right to counsel attaches when the prosecutorial process shifts from the investigatory to the accusatory stage and focuses on the accused as it did here when the respondent was identified by Edward B. as his assailant. (Miranda v. Arizona, supra; Thompson v. State, 451 P. 2d 704 [Nev.]; Haley v. Ohio, 332 U. S. 596, 600; Escobedo v. Illinois, 378 U. S. 478.)
Due process of law requires that the court scrutinize the police action with a finer comb when a child is involved. As was said in Haley v. Ohio, (supra, pp. 599-601): “ What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of
On the latter point, it was also said in Miranda v. Arizona, (supra, p. 458): “ We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it is defended. Its roots go back into ancient times.”
If the written confession and the circumstances under which it was obtained here were allowed to stand, we might as well lament with King Pyrrhus ‘ ‘ a few more victories like this and we áre all lost ”. Such “ Pyrrhic victories ” are abhorrent to our constitutional system of justice.
Furthermore and most important, there was no waiver of the respondent’s constitutional rights, voluntarily, Jcnoivingly and intelligently given here. The petitioner testified that the respondent shrugged his shoulders each time he was asked if he understood the rights. The respondent would have no way of knowing the consequences of his confession without the advice and aid of a mature judgment. (Gallegos v. Colorado, 370 U. S. 49, 54; Miranda v. Arizona, supra.)
Accordingly, the court grants the defense motion to suppress the written confession since there was no waiver voluntarily, intelligently and knowingly made here by the respondent and under the Miranda case (supra), there was no effective waiver of the respondent’s rights under his privilege against self
The fact that in these circumstances, particularly long hours of sleeplessness, the respondent eventually made his statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so, and is inconsistent with any notion of a voluntary relinquishment of the privilege. The requirements of warnings to be given by the police before in-custody interrogation of a suspect and the rule as to waiver of his rights are a fundamental with respect to the Fifth Amendment privilege against self incrimination and not simply a. preliminary ritual to existing methods of interrogation.
An interviewing law enforcement officer must exercise his ¡judgment in determining whether the individual interviewed waives his right to counsel; because of the constitutional basis of the right, the standard for waiver is necessarily high, and the ultimate responsibility for resolving this constitutional question lies with the courts. (Miranda v. Arizona, 384 U. S. 436, 479, 481, supra; Gallegos v. Colorado, 370 U. S. 49, 54, supra.)
In view of respondent’s physical and mental state at the time of the detective’s interrogation and the presence of many law enforcement officers in the police station, the testimony did not establish by a preponderance of the evidence that the respondent knowingly, intelligently and affirmatively waived his constitutional rights. (People v. Paulin, 33 A D 2d 105, 111, supra.)
There then remains the sole question for decision as to whether the respondent was a juvenile delinquent, based on other competent, material and relevant evidence as required by section 744 of the Family Court Act. If the inadmissible confession were the sole evidence of guilt, the juvenile delinquency petition as
The unceasing searchlight for the ascertainment of truth must now be focused on a careful analysis of the facts as to whether there is such other evidence and if so, whether further, the respondent did the acts based on a “ mere preponderance of the evidence. ’ ’ The rules of evidence for the protection of all parties in all trials at law apply in the Family Court but the quantum of weight of the evidence need only amount to the ‘ ‘ preponderance ” of the civil trial, not the “proof required ” beyond a “ reasonable doubt ”, to convict an adult criminal. (Matter of Samuel W., 24 N Y 2d 196; Matter of Ronny, 40 Misc 2d 194, 199; Family Ct. Act, § 744; N. Y. Const., art. VI, § 13.) These rules have “ an infinite capacity for mischief ” because Family Court proceedings relating to juveniles, such as juvenile delinquency proceedings, are not criminal in character, but constitutional safeguards must still be granted to juveniles. (Matter of De Gaglia, 54 Misc 2d 423; Matter of Knox, 53 Misc 2d 889; Matter of Gault, supra; Miranda v. Arizona, supra; Gilbert v. California, supra; Stovall v. Denno, supra.)
Apparently we have not yet reached that lofty and enlightened plateau where the same standards of evidence for proving guilt (“ beyond a reasonable doubt”) applicable to adult criminals are also applied to juveniles. The trumpets have already sounded in Gault (supra). Perhaps we are on our way to another star in our constitutional galaxy “ equal protection of the law”, or better still “equal justice under law”. Paraphrasing Justice Caedozo “ the last assault(s) upon the citidel ” of these remaining inequities for juveniles are beginning to rumble in the valleys and their thunderous din may soon reach the mountain top with a crashing crescendo and sweep the remaining barriers of proof of guilt that presently ‘ ‘ separate the men from the boys ” in serious criminal trouble. Would that we could say, legally, with a famous essayist! “Consistency— thou art a jewel ”.
Getting back to stark reality and our present New York law and applying these constitutional principles and present case law to the instant case, despite the hybrid or quantum or standard of proof required there was sufficient evidence besides the inadmissible confession to find an adjudication of juvenile delinquency. As indicated in my ruling denying the motion to suppress the show-up identification there is additional credible evidence that the act of assault as alleged has been committed. The respondent was properly identified by the victim
There was a prima facie case satisfactorily proved by the petitioner in this delinquency proceeding as far as the assault was
Furthermore, on the basis of the evidence in this case, there can be no doubt that Edward B., the victim of the assault, would have recognized his assailant at the time of trial even if the intervening police station confrontation and identification had not occurred (Wade v. United States, 388 U. S. 218, 242, supra). Consequently, there is not involved in the instant case any ‘ ‘ tainted fruit ’ ’ determination, since there was no primary illegality involved in the police station identification of the respondent by the victim of the assault.
The determination of juvenile delinquency as to the homicide is obviously much more difficult since there was no reliable eyewitness identification such as the victim in the assault. It must then be determined whether the inadmissible confession is the only evidence of the guilt of the respondent as to the homicide or whether there is other evidence standing by itself and independent of the confession which still furnish the required quantum of material, relevant and competent evidence and if so whether or not there is a preponderance of such evidence under section 744 of the Family Court Act. (Matter of “ Rutane ”, 37 Misc 2d 234, supra.)
On the basis of the credible evidence adduced at the trial, the respondent was in the basement apartment where he assaulted Edward B. and followed the deceased into his room where the latter had retreated after trying to help his friend, Edward B., from being “ caned ”. Edward B. testified on direct examination he saw the respondent follow the deceased into his room although he heard nothing. The respondent lied to the police when he tried to implicate one Bodney B. in the killing, since Bodney B. was proven to be in Auburn prison at the time of the commission of the crime. He freely admitted he was a witness to the homicide at the threshold of the investigation by the police and before he became a suspect. His activities in effect put a 1 ‘ rope around his own neck ’ ’. Nor was he helped in any appreciable degree by his mother and sister who took the stand in his behalf. Neither proved an alibi defense for the respondent showing his presence elsewhere than at the scene of the crime. Their testimony in many respects was inconsistent and
At the initial police station confrontation between the victim of the assault, Edward B. and the respondent, the mother had testified that before Edward B. made the identification of the respondent he had asked her ‘ ‘ Is this the boy that plays the guitar? ” The mother answered “ Yes ”. Then says Edward B., “ he must be the one that hit me — that did it ”. No matter how far-fetched or ludicrous testimony is by a mother, anxious to help her son, this testimony is unbelievable, for to give such words their true meaning and dangerous import the mother would be implicating her own son.
Here again, on the basis of all of the foregoing, a prima facie case was satisfactorily proven in this delinquency proceeding by competent, relevant and material evidence including strong circumstantial evidence which is not illegal. On the basis therefore of “ totality of circumstances ” and the strong links forged in the chain of evidence against the respondent, there is ample evidence here apart from the inadmissible confession — evidence that is competent, relevant and material and meets the required quantum of proof (“ preponderance ”). (Family Ct. Act, § 744, subd. [b].)
The respondent also did not go forward successfully with defense evidence to rebut the prima facie case already established, and accordingly the finding made against him as to the homicide must stand with finality. (Matter of Ronny, supra, p. 194.)
The restrictions applicable are those required by the fundamental due process of law to fair treatment. The adjudication of juvenile delinquency is supported by a preponderance of the evidence, competent, relevant, material and nót bated on evidence which is illegal and insufficient as a matter of law (illegal lineup or shape-up and coerced confession). (U. S. Const. 5th, 6th, and 14th Amdts.; Miranda v. Arizona, supra; Gallegos v.
The evidence of the underlying acts upon which the court has made its adjudication of juvenile delinquency is substantial and significant. On the merits the court finds that the petition has been established by a preponderance of the competent, material and relevant evidence. (Family Ct. Act, §§ 724, 744; Matter of Houseworth, 53 Misc 2d 375, supra; Matter of Ronny, 40 Misc 2d 194, supra; Matter of Gregory W., 19 N Y 2d 55.)
It is further found that the respondent’s acts, if committed by an adult would constitute the crimes of manslaughter in the first degree (Penal Law, § 125.20) and assault in the second degree (Penal Law, § 120.05). He is adjudicated a juvenile delinquent and the Probation Department is directed to make a predispositional hearing investigation.