| People v Slocum |
| 2015 NY Slip Op 08203 [133 AD3d 972] |
| November 12, 2015 |
| Appellate Division, Third Department |
[*1](November 12, 2015)
| The People of the State of New York, Respondent, v Matthew A. Slocum, Appellant. |
Michael J. Mercure, Public Defender, Fort Edward, for appellant, and appellant prose.
P. David Soares, District Attorney, Albany (Jason Weinstein, New York ProsecutorsTraining Institute, Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered March 20, 2012, upon a verdict convicting defendant of thecrimes of murder in the second degree (three counts), arson in the third degree, tamperingwith physical evidence, petit larceny and criminal possession of a weapon in the thirddegree.
Defendant was convicted by a jury of shooting and killing his mother, stepfather andstepbrother in their home in the Town of White Creek, Washington County, as well asstealing several items of personal property, including multiple firearms, and setting fireto the victims' home. The evidence considered by the jury included, among other things,statements that defendant made to law enforcement officials on the night of his arrest, aswell as his statement to a social services worker while in jail following his arrest.Defendant argues on appeal that his convictions for murder in the second degree wereagainst the weight of the evidence, an argument we reject (see People v Romero, 7 NY3d633, 643-644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's admissions, together with the testimony of his girlfriend, LorettaColegrove, and the forensic evidence, demonstrate that defendant, with the requisiteintent, caused the death of his mother, stepfather and stepbrother (see Penal Law§ 125.25 [1]; People v Hamilton, 127 AD3d 1243, 1243 [2015], lvdenied 25 NY3d 1164 [2015]). While a contrary verdict would not have beenunreasonable in light of defendant's testimony at trial identifying Colegrove as theshooter, the jury was free to credit Colegrove's testimony over defendant's testimony (see People [*2]v Stanford, 130 AD3d 1306, 1308 [2015]) and,upon our independent review, we find defendant's convictions of murder in the seconddegree to be supported by the weight of the evidence (see People v Green, 121 AD3d1294, 1294-1295 [2014], lv denied 25 NY3d 1164 [2015]; People v Vanderhorst, 117AD3d 1197, 1198-1200 [2014], lv denied 24 NY3d 1089 [2014]).[FN1] With that said, however,the dispositive issue herein is whether the jury should have had before it all the evidenceit did. Inasmuch as we conclude that defendant was denied his right to counsel duringpolice questioning, we reverse the judgment of conviction, partially grant defendant'spreviously denied motion to suppress, and direct a new trial.
It is well settled that a defendant's indelible right to counsel attaches in twosituations; the first being "upon the commencement of formal proceedings, whether ornot the defendant has actually retained or requested a lawyer," and the second when "anuncharged individual has actually retained a lawyer in the matter at issue or, while incustody, has requested a lawyer in that matter" (People v West, 81 NY2d 370,373-374 [1993]). Once a defendant unequivocally requests counsel, all policequestioning must cease (seePeople v Jemmott, 116 AD3d 1244, 1246 [2014]). Further, "[o]nce a lawyer hasentered a criminal proceeding representing a defendant in connection with criminalcharges under investigation, the defendant in custody may not waive his [or her] right tocounsel in the absence of the lawyer" (People v Hobson, 39 NY2d 479, 481[1976]; see People vCallicutt, 85 AD3d 1326, 1327 [2011], lv denied 18 NY3d 992[2012]).
On July 13, 2011, the same day the crimes were committed, defendant fled to NewHampshire with Colegrove and their three-month-old child, where he was apprehendedand arrested later that evening. Also on that day, but before defendant's arrest, MichaelMercure, the Washington County Public Defender, sent a letter to the WashingtonCounty District Attorney's office, the Washington County Sheriff's Department and theState Police[FN2]indicating that defendant had open charges in the Town of Greenwich, WashingtonCounty and, as such, was "a present client of the Public Defender's [o]ffice and wouldqualify for representation on any additional charges against him." The letter went on tostate that Mercure knew defendant was "a person of interest and/or suspect in a potentialarson/homicide in the Town of White Creek." On this basis, Mercure requested that he becontacted if defendant was "arrested and/or detained" and he specifically requested thatdefendant "not be questioned or interrogated without counsel present."
Bruce Hamilton, an investigator with the Washington County Sheriff's Department,and John Ogden, a State Trooper, traveled to New Hampshire to interview defendant atthe state-owned facility where he was being detained. Prior to their departure for NewHampshire, a meeting was held at which the District Attorney instructed Hamilton andOgden that, despite Mercure's letter, they could interrogate defendant until he asked foran attorney. Before commencing the interrogation, Hamilton told defendant that he wasaware that defendant was represented by the Public Defender's office on a differentcharge and asked defendant "if he felt that he should have an attorney or if he wanted tobe represented by the Public Defender's office," to which defendant responded, "Yeah,probably." Likewise, Ogden recalled Hamilton asking [*3]defendant "if he intended or expected to use [the PublicDefender's office] to represent him" with respect to the current charges and thatdefendant had replied, "Yeah, probably." In response to Hamilton's further inquiry as todefendant's satisfaction with the legal representation afforded by the Public Defender'soffice, defendant indicated displeasure at the resolution of an old case. Hamilton andOgden then handed defendant a Miranda rights form, had him sign it andproceeded to question defendant about the instant crimes. Neither officer showeddefendant Mercure's letter, nor did they inform him of its existence.
"A defendant's request for an attorney will invoke his or her indelible right to counselif the request is unequivocal, an inquiry which is a mixed question of law and fact thatmust be determined with reference to the circumstances surrounding the requestincluding the defendant's demeanor, manner of expression and the particular wordsfound to have been used by the defendant" (People v Higgins, 124 AD3d 929, 931 [2015] [internalquotation marks and citations omitted]; see People v Glover, 87 NY2d 838, 839[1995]). "The relevant inquiry is whether a reasonable police officer would haveunderstood the statement in question as a request for an attorney" (People vJemmott, 116 AD3d at 1247 [citation omitted]), and a statement that is "merely aforewarning of a possible, contingent desire to confer with counsel rather than anunequivocal statement of [a] defendant's present desire to do so" is not sufficient toinvoke the right to counsel (People v Higgins, 124 AD3d at 931).
On appeal, the People contend that defendant's statement—namely, "Yeah,probably"—did not unequivocally invoke his right to counsel. We disagree. Theword "probably" is defined as "very likely" or "almost certainly" (Merriam-WebsterOnline Dictionary, probably [http://www.merriam-webster.com/dictionary/probably]). Itis difficult to conceive of circumstances where "probably" would mean "no," particularlyhere, where the police knew that defendant was currently represented, albeit on unrelatedcharges, and also knew that counsel was so clearly attempting to protect his currentclient's constitutional rights. Defendant's demeanor and tone when saying "Yeah,probably" was his simple expression, in everyday language, that he was not competent orcapable to deal with the officers' questioning. Thus, based on the particularcircumstances herein, a reasonable police officer would have understood that defendant'sstatement was a request for counsel, requiring questioning without representation tocease (see People v Jemmott, 116 AD3d at 1247).[FN3]
Even if a reasonable officer could have interpreted "Yeah, probably" to be equivocal,the unique circumstances presented herein—namely, the existence of Mercure'sletter—created a situation where Hamilton and Ogden were required to inquirefurther to see if the indelible right to counsel had attached and to "insure that thedefendant's right to be represented by counsel be protected" (People v Callicutt,85 AD3d at 1328 [internal quotation marks and citation omitted]). "Any arguableambiguities in the attorney-client relationship cannot be seized by [law enforcement] as alicense to play fast and loose with this precious right" (id. [internal quotationmarks and citations omitted]; see People v Lopez, 16 NY3d 375, 380-381 [2011];People v Ramos, 40 NY2d 610, 618 [1976]). To be clear, we understand theconstraints of our case law prohibiting us from finding that Mercure's letter, in and ofitself, constituted a formal appearance by counsel because it did not communicate thatMercure represented defendant with respect to the murders/arson. As such, we must findthat this letter alone did not invoke defendant's right to [*4]counsel (see People v Pacquette, 17 NY3d 87, 97 [2011]; Peoplev Grice, 100 NY2d 318, 322-324 [2003]; People v Arthur, 22 NY2d 325,329 [1968]). However, our concern here is focused on the fact that, rather than clarifyingwhether defendant wanted Mercure's representation on the current charges, Hamilton andOgden instead engaged in an irrelevant and brief discussion of defendant's pastexperiences with the Washington County Public Defender's office. They did not offerdefendant a telephone, the ability to communicate with the Public Defender's office oreven inform him of Mercure's letter.[FN4] Their inquiry into defendant'ssatisfaction, or lack thereof, with his attorney in an earlier case did not equate tocompliance with the mandates set forth in Lopez and its progeny, and it wasimproper for Hamilton and Ogden to rely on defendant's voiced dissatisfaction to skirthis right to counsel. In light of their knowledge of Mercure's letter, by not asking thesimple follow-up question of whether defendant wanted Mercure's representation at thattime, Hamilton and Ogden infringed upon defendant's right to counsel (see People v McLean, 109AD3d 670, 677-678 [2013, McCarthy, J., dissenting], affd 24 NY3d 125[2014]). Therefore, defendant's indelible right to counsel attached when he said, "Yeah,probably."
In any event, our inquiry continues because "[a] violation of the indelible right tocounsel does not automatically constitute reversible error. Instead, it is reviewed underthe harmless error doctrine for constitutional violations" (People v Lopez, 16NY3d at 386; see People vDashnaw, 85 AD3d 1389, 1391 [2011], lv denied 17 NY3d 815 [2011])."Errors of this type are considered harmless when, in light of the totality of the evidence,there is no reasonable possibility that the error affected the jury's verdict" (People vLopez, 16 NY3d at 386 [internal quotation marks and citations omitted]; seePeople v Dashnaw, 85 AD3d at 1391). Here, absent defendant's statements, theremaining evidence at trial consisted of Colegrove's testimony that defendant committedthe murders, defendant's testimony that Colegrove committed the murders, forensicevidence that failed to conclusively establish that defendant committed the murders,defendant's statements prior to the murders and his apology letter to his brother, whichdid not contain an explicit confession. As it cannot be said that there is no reasonablepossibility that the admission of defendant's statements at trial affected the jury's verdict,County Court committed reversible error in failing to suppress defendant's statements tothe officers while in custody in New Hampshire (see People v Dashnaw, 85AD3d at 1392; People vHilliard, 20 AD3d 674, 679 [2005], lv denied 5 NY3d 853 [2005]).Accordingly, these statements must be suppressed.
Defendant's statements to Robin MacNeil, a child protective services caseworkerwith the Washington County Department of Social Services, were also erroneously ruledadmissible. In this regard, statements made by a defendant, after his or her right tocounsel had attached, to a caseworker undertaking an investigation on behalf of childprotective services will only be suppressed if the caseworker is acting as an agent of thepolice (see CPL 60.45 [2] [b]; People v Cordato, 85 AD3d 1304, 1310 [2011], lvdenied 17 NY3d 815 [2011]; People v Wilhelm, 34 AD3d 40, 47-48 [2006]). Relevantfactors in determining whether a caseworker operated as an agent of law enforcementinclude, " 'a clear connection between the police and the private investigation[,]completion of the private act at the instigation of the police[,] close supervision of theprivate conduct by the police . . . and a private act undertaken on behalf ofthe police to further a police objective' " (People v Greene, 306 AD2d639, 640-641 [2003], lv denied 100 NY2d 594 [2003], quoting People vRay, 65 NY2d 282, 286 [1985]).
[*5] Here,it is undisputed that defendant's right to counsel had attached before July 19, 2011, theday MacNeil, accompanied by Hamilton, met with defendant at the Washington Countyjail in order to read defendant a child protective report concerning his child withColegrove and the alleged murders/arson. As of July 15, 2011, defendant had beenassigned counsel, the Washington County Public Defender's office, and an additionalletter from Mercure had been received by the District Attorney requesting no furtherquestioning of defendant without counsel present. Prior to reading the report, MacNeiltold defendant that he could respond if he wanted to and, after she read it to him,defendant declared that Colegrove had nothing to do with it.[FN5] MacNeil acknowledged that she worksclosely with the police in these types of investigations and that, to the best of herrecollection, Hamilton was present in the room as she was speaking with defendant.Based on the foregoing, we find that MacNeil was acting as an agent of law enforcementand, therefore, her questioning also infringed upon defendant's right to counsel. Thus, asthe product of interrogation by a public servant engaged in law enforcement activity,defendant's statements to MacNeil were involuntary and should have been suppressed(see People v Wilhelm, 34 AD3d at 47-48). Conversely, however, defendant'sstatements to law enforcement during transport to New York were voluntary andspontaneous and, as such, properly admitted at trial (see People v Rivers, 56NY2d 476, 479-480 [1982]).
Defendant's argument concerning alleged Brady violations, as well as hisremaining contentions of prosecutorial misconduct and harsh and excessive sentence,have been rendered academic by our decision.
Lahtinen, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isreversed, on the law, grant that part of defendant's motion to suppress statements madeafter he invoked his right to counsel as set forth herein and all statements made to RobinMacNeil, and matter remitted to the County Court of Washington County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1:Defendant does notchallenge the legal sufficiency of the evidence on appeal.
Footnote 2:The letters to the DistrictAttorney and the Sheriff were sent by fax and regular mail while the letter to the StatePolice was sent by regular mail.
Footnote 3:Our holding thatdefendant invoked his right to counsel renders discussion of the adequacy of defendant'swaiver of his Miranda rights academic (see People v Esposito, 68 NY2d961, 962 [1986]).
Footnote 4:We agree with thePeople's statement at oral argument that, although the law does not so require, the bestpractice would have been for Hamilton and Ogden to simply have shown Mercure's letterto defendant.
Footnote 5:Colegrove was givenfull immunity and testified against defendant at trial.