N.Y. State Supreme Court rules murder suspect's statements

Where the defendant was accused of two counts of murder and one count of assault, he moved to suppress various statements made to the police and a caseworker.

Reviewing the facts in People v. David M. Zacher, New York State Supreme Court, Monroe County Judge Joseph D. Valentino found the warrantless entry by the police was proper. The judge denied the defendant's motion to suppress his statements to the caseworker as the caseworker was not an agent of the police.

The Facts

At approximately 7:15 p.m. on April 8, Sergeant Samuel Cubiotti responded to a 911 dispatch call. A caller named David had stated that he had hurt his family and, specifically, that they had been stabbed. Cubiotti entered the house and observed blood splattered in the hallway.

Cubiotti found the defendant, David Zacher, in the kitchen of his house. Cubiotti observed a child, who appeared to be deceased, laying on the floor. Zacher was holding a female child who had a stab wound in the chest.

Zacher was ordered to put the child down and he was handcuffed. Cubiotti testified he handcuffed Zacher for officer safety reasons based on what he learned from 911 and the crime scene he observed.

Inside the house, Cubiotti observed a dead woman, who appeared to be stabbed, and a female child, who appeared to be dead. No one else was found in the house.

At approximately 7:30 p.m., Cubiotti and Officer Michael Haugh took Zacher to police headquarters. Haugh testified that Zacher was bleeding and the processing area [of police headquarters] was the best place to clean him up. Zacher was not free to leave the processing area.

Lieutenant Stephen Wise, a supervisor, arrived and spoke to Zacher. Wise did not advise Zacher of his Miranda rights. Wise testified that his questioning was short and he was investigating to determine whether [Zacher] was a victim, suspect or witness. Wise asked Zacher his name, age, address, whether he had been at the house, if anyone else was at the house and if he hurt anyone.

Zacher told Wise that he did not know if he hurt anyone. When asked if his family was okay, Zacher told Wise that he did not know.

Greece Volunteer Ambulance staff treated the larcerations on Zacher's right hand and foot.

At 8:30 p.m., in the interview room before any questioning, Sergeant Theodore Bielowicz advised Zacher of his Miranda rights. Zacher waived his rights and agreed to speak with Bielowicz.

Zacher stated I shouldn't have hurt them. When asked who he hurt, Zacher replied that he shouldn't have hurt [his] daughters.

Bielowicz asked How did you hurt them? Zacher replied, I think I should talk to a lawyer. Bielowicz ceased questioning at this point.

Child Protective Services contacted Katherine Colgan, a caseworker, to conduct a child abuse/neglect investigation. Colgan interviewed Zacher's 7-year-old son.

Colgan wanted Zacher's input concerning the placement of the surviving children. Colgan knew that Zacher had requested an attorney and she did not advise him of his Miranda rights.

Zacher gave Colgan his account of the events. He told her that he was covered in blood and that his wife and two daughters were hurt.

When Colgan asked, Who do you think did this? Zacher replied I thought it must have been me because nobody else was in the house.

Colgan's interview lasted 35 minutes. Zacher did not refuse to answer Colgan's questions and did not request to speak to an attorney or for the questioning to stop.

Zacher was accused of two counts of Murder in the First Degree (Penal Law Section 125.27[1][a][viii] and [b]) and one count of Assault in the First Degree (Penal Law Section 120.10[1]). Zacher moved for various relief and the court granted him a Huntley hearing, People v. Huntley, 15 NY2d 72.

Court's Analysis

Zacher asserted that his statements to police and Colgan were obtained in violation of his state and federal constitutional rights, CPL 60.45 and state common law, and they should be suppressed.

A confession or admission is admissible at trial only if its voluntariness is established by the People beyond a reasonable doubt, People v. Valerius, 31 NY2d 51.

Judge Valentino noted, Miranda warnings are required whenever a person is subjected to custodial interrogation, that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest and the questioning is intended to elicit incriminating evidence, Miranda v. Arizona, 384 US 436; People v. Berg, 92 NY2d 701.

The factors to be considered, when determining whether a reasonable person would have believed that person was in police custody, include the amount of time the individual spent with the police, whether ... freedom of action was significantly restricted, the location of the questioning and the atmosphere under which [questioning took place], [the] degree of cooperation, whether [the individual was] apprised of constitutional rights, and whether the questioning was investigatory or accusatory in nature, People v. Macklin, 202 AD2d 445, lv denied 83 NY2d 912; People v. Bailey, 140 AD2d 356, 358.

The court found questions of an investigatory nature such as what happened? do not require pre-interrogation warnings, People v. Johnson, 59 NY2d 1014; People v. Armstrong, 210 AD2d 182, lv denied 85 NY2d 935; People v. Mallory, 175 AD2d 623, lv denied 78 NY2d 1013.

Warrantless Entry

The presence of exigent circumstances will permit the police to enter a residence without a warrant, People v. Molnar, 98 NY2d 328, 331-332; People v. Hodge, 44 NY2d 553.

In this case, Cubiotti testified that he was responding to the 911 call from a man who indicated that he had hurt [his] family. The court reasoned [t]he entry was motivated primarily by a reasonable belief that an emergency existed which required immediate action for the protection of life, People v. Mitchell, 39 NY2d 173; People v. Cruz, 89 AD2d 526, 526, affd 59 NY2d 984.

Judge Valentino determined that exigent circumstances were present which permitted the police to enter [Zacher's] residence without a warrant.

Detention

A defendant's detention may be the equivalent of an arrest requiring probable cause, People v. Hicks, 68 NY2d 234, 239.

To determine whether a de facto arrest has taken place the test is 'what a reasonable man innocent of any crime, would have thought had he been in the defendant's position,' People v. Yukl, 25 NY2d 585, 589.

Judge Valentino examined the facts of this case, including the 911 call, the police responding with their guns drawn, the blood splattered and the child laying dead near Zacher.

Based on these circumstances, the court found a reasonable person innocent of any crime ... would have thought that he was under arrest, People v. Yukl, supra. Thus, the police were required to have probable cause for their actions.

Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense had been committed (People v. Oden, 36 NY2d 382, 384) and that the person arrested is the perpetrator (People v. Carrasquillo, 54 NY2d 248, 254).

Judge Valentino determined, given the facts of the case, the police had probable cause to arrest Zacher and there was no Fourth Amendment violation.

Statements To Wise

Police custody and interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda, People v. Huffman, 41 NY2d 29, 33.

The court found that Wise's questions were not all purely investigatory in nature and not designed to clarify the nature of the developing situation. As such, Miranda warnings were required prior to asking [Zacher] 'if he hurt anyone,' People v. O'Connor, 6 AD3d, lv denied 3 NY3d 639, 645; People v. Rifkin, 289 AD2d, lv denied 97 NY2d 759; People v. Crowley, 98 AD2d 628; People v. Johnson, 59 NY2d 1014; People v. Huffman, 41 NY2d 29; cf., People v. Armstrong, 210 AD2d 182, lv denied 85 NY2d 935; People v. Mallory, 175 Ad2d 623, lv denied 78 NY2d 1013.

Judge Valentino determined that the question if he hurt anyone was designed to elicit an inculpatory response or further an investigation. Consequently, suppression of Zacher's statement was mandated by the Miranda violation.

The court granted Zacher's motion to suppress his statements to Wise. However, the court found Wise's prior questions pedigree in nature, and did not suppress those questions.

Statements To Bielowicz

The court determined that Zacher freely and voluntarily waived his Miranda rights. Bielowicz promptly ceased questioning Zacher after he stated I think I should talk to a lawyer.

The court found Zacher's statements to Bielowicz were obtained with regard to his constitutional rights and were admissible at trial.

Statements To Colgan

Generally, social workers are not agents of the police, Matter of Luis M., 83 NY2d 226. However, [social workers] may be considered agents under certain circumstances, People v. Whitmore, 12 AD3d 845, 845, lv denied 4 NY3d 769, 892.

According to the court, when Zacher made his statement to Colgan, his right to counsel had attached and so his statement would be dismissed if Colgan was an agent of the police, People v. Whitmore, 12 AD3d 845, lv denied 3 NY3d 743.

Colgan interviewed Zacher as part of the Child Protective Services investigation. She was not asked by the police to contact Zacher.

Colgan interviewed Zacher without police input. The court concluded that Colgan was not an agent of the police when she interviewed Zacher, People v. Jackson, 4 AD3d 848, lv denied 2 NY3d 801; People v. Whitmore, supra.

The court denied Zacher's motion to suppress his statements to Colgan.

Conclusion

The court found that the police's warrantless entry into Zacher's residence was proper due to the exigent circumstances of the 911 call.

Zacher's statements to Wise were suppressed as Wise failed to advise Zacher of his Miranda rights prior to asking him incriminating questions.

The court determined Zacher had freely and voluntarily waived his Miranda rights when he spoke with Bielowicz. The statements Zacher made, up until the time he requested legal assistance, were admissible.

Judge Valentino denied Zacher's motion to suppress his statements made to Colgan as the court determined that she was not an agent of the police.

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