Opinion
July 20, 1970
Appeal from a judgment of the County Court, Nassau County, rendered March 7, 1968, convicting defendant of murder in the first degree, upon a jury verdict, and sentencing him to life imprisonment. Judgment reversed, on the law, and new trial ordered. The findings of fact are affirmed. Among the errors assigned is one which, in our opinion, mandates reversal. This was the admission of the testimony of Dr. Harold Zolan, called as a rebuttal witness by the People, over the objection of defense counsel, who testified as to defendant's sanity based on an examination of defendant after he had requested an attorney. On November 13, 1966, at approximately 4:00 A.M., defendant shot his divorced wife with a shotgun in the presence of their two daughters in Baldwin, Long Island. Immediately thereafter he drove to The Bronx and told Father William McManus what he had done. After a discussion, Father McManus went with him to Nassau County, where defendant, accompanied by Father McManus, voluntarily entered the police station and gave himself up. The time was approximately 9:15 A.M. After being warned of his rights pursuant to Miranda v. Arizona ( 384 U.S. 436) defendant made an oral waiver of such rights and proceeded to make certain statements to the police in response to their questions. During the questioning he admitted that he had shot his wife but added that his gun had accidentally discharged. After completing their interrogation at about 10:00 A.M. the police officers asked if he would like to sign a statement incorporating his oral statements. Defendant replied, "I don't think I should put anything on paper until I see a lawyer." He was then asked if he wanted an attorney, and he said, "Yes". At about 1:25 P.M., Dr. Zolan presented himself to defendant. He said he was there on behalf of the District Attorney and told defendant he did not have to talk to him if he did not want to. Dr. Zolan then conducted an examination of defendant which lasted about an hour and a half. Defendant pleaded not guilty to the charge of murder in the first degree and offered the defense of insanity. During trial the defense presented medical testimony to the effect that defendant was suffering from psychomotor epilepsy. Dr. Zolan testified over objection that, based on his examination of defendant, he concluded that defendant was legally sane at the time of the commission of the crime for which he was indicted. In our opinion it was prejudicial error for the court below to have allowed this testimony in view of the constitutional mandate of the Supreme Court of the United States in Miranda v. Arizona ( supra). Miranda requires: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present" ( supra, p. 474). It appears clear from Miranda that, once an accused has indicated he wants an attorney, custodial interrogation must cease and thereafter further questioning cannot be initiated by the police, the prosecution or their agents without the presence of counsel or at least until the accused has had an opportunity to confer with an attorney. In People v. Al-Kanani ( 31 A.D.2d 838, affd. 27 N.Y.2d ___) we reversed a judgment convicting the defendant of murder in the first degree. There, the defendant, after he was indicted and arraigned, was examined by a psychiatrist without notice to the defendant's retained attorney or pursuant to an order of the court and without the defendant's knowledge of the purpose of the examination. There we stated that since the examining psychiatrists had not been "appointed by the court or designated by statute to make an impartial and disinterested mental examination of defendant * * * it cannot be assumed that his examination was conducted in a manner consistent with the constitutional rights of the accused. Instead he must be regarded as a prosecution witness who may have compelled the accused to furnish evidence against himself" (p. 840). We went on to state that though the psychiatrists had testified as to no inculpatory statements made by the defendant, the psychiatrist also had concluded, on the basis of his examination of the defendant, that the defendant was sane at the time of the commission of the crime, which conclusion, though not directly incriminating the accused, bore directly on his plea of "not guilty by reason of insanity" (p. 840). We further stated: "Notice may be taken that the examination to which defendant was subjected by this witness necessarily involved questioning to which defendant responded by word or action in such a way as to indirectly incriminate himself" (p. 840). In our opinion, the afore-mentioned reasoning applies equally to the instant defendant. While the defendant at bar was not indicted and represented by counsel as in Al-Kanani ( supra), he was in police custody and had requested an attorney. To hold otherwise would be to contravene the very basic constitutional rights enunciated in Miranda v. Arizona ( supra). It is axiomatic by now that the privilege against self incrimination is as broad as the evil it seeks to prevent. Christ, P.J., Martuscello, Latham and Kleinfeld, JJ., concur; Munder, J., dissents and votes to affirm the judgment, with the following memorandum: Defendant stands convicted of murder in the first degree. The proof was overwhelming. He shot his divorced wife in the back with a shotgun in the presence of his two daughters. Both daughters, aged 15 and 13 at the time of the trial, testified to the shooting. They testified how the couple was fighting at the top of the stairs in their Long Island home, how the victim freed herself from defendant's grip and fled down the stairs, how defendant aimed the gun, squeezed the trigger and then walked past the fallen victim saying, "Remember, Mary, you did it to me." After the shooting, defendant drove to The Bronx and told his friend, Father William McManus, of the incident. The priest testified to this fact. At the priest's urging, defendant turned himself in to the police and, after being given the Miranda warning, voluntarily told the police of the shooting. His version of the shooting was identical to that given by the daughters. He identified the murder weapon. He told the police he dropped his eyeglasses in the yard as he ran from the house and that is where they were found. His ability to recall these details is significant because at the trial he claimed he was suffering from psychomotor epilepsy, and a person suffering from such a malady would have difficulty in recalling events which occurred during a seizure. Defendant called a psychiatrist to testify regarding his alleged epilepsy and, interestingly, this witness admitted that most of his diagnosis was based not on personal observation but on what others had told him concerning defendant. To rebut this, the People called Dr. Harold Zolan and the majority finds the admission of Dr. Zolan's testimony to be reversible error. In this context, I cannot agree. At the time Dr. Zolan examined defendant, the latter had neither been arraigned nor indicted. The doctor announced himself as a representative of the District Attorney and assured defendant he did not have to talk. More important, the doctor's testimony did not directly incriminate defendant as the perpetrator of the crime. If ever there was a case in which it could be said that certain tainted evidence did not contribute to a conviction, this is it (see People v. Baker, 26 N.Y.2d 169, 174). The other evidence in this case of defendant's guilt is so overwhelming that any error ascribed to the admission of the doctor's testimony must be characterized as harmless ( Harrington v. California, 395 U.S. 250; People v. Pelow, 24 N.Y.2d 161).