The People, Appellant,v.Eugene Polhill, Respondent.BriefN.Y.September 18, 2014 APL-2013-00119, APL 2013-00120, APL 2013-00121 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- JERMAINE DUNBAR, Defendant-Respondent. ______ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- COLLIN F. LLOYD-DOUGLAS, Defendant-Respondent. ______ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- EUGENE POLHILL, Defendant-Respondent. BRIEF FOR DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AS AMICUS CURIAE FRANK A. SEDITA III Erie County District Attorney President, District Attorneys Association Of the State of New York c/o Richmond County District Attorney 130 Stuyvesant Place, Staten Island, NY 10301 718-556-7010 MORRIE I. KLEINBART DONNA MILLING ASSISTANT DISTRICT ATTORNEY Of Counsel July 25, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................... i PRELIMINARY STATEMENT .............................................................................. 2 INTEREST OF THE AMICUS ................................................................................ 5 ARGUMENT AS LONG AS THE MIRANDA WARNINGS ADMINISTERED TO SOMEONE BEING QUESTIONED INCLUDES THE FOUR CRITICAL RIGHTS IDENTIFIED BY THE SUPREME COURT, THE PROPRIETY OF ANY WAIVER OF THOSE CONSTITUTIONAL RIGHTS IS JUDGED BY AN EXAMINATION OF THE TOTALITY OF THE CIRCUMSTANCES OF THE WAIVER .......................................... 6 CONCLUSION ........................................................................................................ 19 TABLE OF AUTHORITIES Berghuis v. Thompkins, 560 U.S. 370 (2010) ............................................ 11,12, 17 Bram v. United States, 168 U.S. 532 (1897) ............................................................. 8 California v. Prysock, 453 U.S. 355 (1981) ......................................................... 7, 16 Dickinson v. United States, 530 U.S. 428 (2000) ................................................. 7, 9 Eagan v. Duckworth, 492 U.S. 195 (1989) ............................................................. 16 Florida v. Powell, 556 U.S. 50 (2010) .................................................................. 7, 16 Johnson v. Zerbst, 304 U.S. 458 (1938) .................................................................. 11 Missouri v. Seibert, 542 U.S. 600 (2004) ........................................................... 13, 15 Miranda v. Arizona, 384 U.S. 436 (1966) ......................................................... passim Moran v. Burbine, 475 U.S. 412 (1986) ............................................................ 11, 12 North Carolina v. Butler, 441 U.S. 369 (1979) ................................................ 11, 17 People v. Brown, 14 N.Y.3d 113 (2010) ................................................................. 17 People v. Dunbar, 104 A.D.3d 198 (2d Dept. 2013) .......................................... 3, 6 People v. Hawkins, 55 N.Y.2d 474 (1982 ) ............................................................ 10 People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dept. 2013) .................................. 3 People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013) ................................................. 3 People v. Providence, 2 N.Y.3d 579 (2004) ........................................................... 16 People v. Williams, 62 N.Y.2d 285 (1984)........................................................ 15, 17 Schneckloth v. Bustamente, 412 U.S. 218) (1973) ................................................ 16 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- JERMAINE DUNBAR, Defendant-Respondent. APL 2013-00119 THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- COLLIN F. LLOYD-DOUGLAS, Defendant-Respondent. APL 2013-00120 THE PEOPLE OF THE STATE OF NEW YORK, Appellant , -against- EUGENE POLHILL, Defendant-Respondent. APL 2013-00121 BRIEF FOR DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AS AMICUS CURIAE PRELIMINARY STATEMENT The District Attorneys Association of the State of New York (“DAASNY”) submits this brief as amicus curiae in the above captioned appeals. By permission of Associate Judge Robert Smith, the People of the State of New York appeals from three orders of the Appellate Division, Second Department, rendered January 30, 2013. By those orders, the Appellate Division reversed separate judgments of the Supreme Court, Queens County, rendered May 10, 2010 (McGann, J. at suppression hearing; Camacho, J. at trial and sentence), April 6, 2010 (O’Dwyer, J.H.O. at suppression hearing; Erlbaum, J. confirming suppression ruling; Butcher, J.), and January 27, 2010 (Grosso, J. at suppression hearing; Butcher, J. at trial and sentence), suppressed inculpatory statements made by each of the above referenced defendants, and remanded for a new trial. By the first, defendant Jermaine Dunbar was convicted of Attempted Robbery in the Second Degree (Penal Law §§110.00/160.10[1]) and Criminal Mischief in the Fourth Degree (Penal Law §145.00[1]) and sentenced, as a persistent violent felony offender, to a term of Page | 2 imprisonment of from seventeen years to life. By the second, defendant Collin F. Lloyd-Douglas was convicted of Attempted Murder in the Second Degree (Penal Law §§110.00/125.25[1]), Assault in the First Degree (Penal Law §120.10[1]), Unlawful Imprisonment in the First Degree (Penal Law §135.10) and Criminal Possession of a Weapon in the Third Degree (Penal Law §265.02[1]) and sentenced to aggregate concurrent terms of fifteen years imprisonment, to be followed by five years post-release supervision. By the third, defendant Eugene Polhill was convicted of Attempted Robbery in the Second Degree (Penal Law §§160.10[1]) and sentenced, as a second felony offender, to a seven year term of imprisonment, to be followed by five years of post-release supervision. All three defendants remain incarcerated pursuant to their respective convictions. On the respective appeals to the Appellate Division, Second Department, that court reversed. People v. Dunbar, 104 A.D.3d 198, 210 (2d Dept. 2013); People v Lloyd-Douglas, 102 A.D.3d 986 (2d Dep't 2013); People v. Polhill, 102 A.D.3d 988 (2d Dep't 2013). Common to these cases was the participation of each of these defendants in the videotaped interrogation program conducted by the Queens County District Attorney. The interviews in these cases were Page | 3 conducted post-arrest while each was being processed in Central Booking, Queens (“CBQ”) but before the filing of a felony complaint; participating in the questioning were an assistant district attorney and a detective investigator from the Queens County District Attorney’s Office. The questioning was preceded by a brief account of what was about to take place, including an explanation of the purpose of the pre-arraignment interview, followed immediately by the administration of Miranda warnings. In the course of the program, the investigators obtained both inculpatory and exculpatory statements from arrestees. The type of information obtained included credible denials of participation in the charged crime or alibis which, upon an immediate investigation, led to dismissal of charges even before arraignment. Crucial to the reversals in these cases was the Appellate Division’s conclusion that, even though none of the statements at issue had been elicited without the questioners first having advised these defendants of their constitutional rights, the prefatory explanation offered before those rights had been administered, alone so undermined the clarity of the Miranda warnings themselves so as to be unclear and confusing as a matter of law, thus rendering any waiver of those rights unknowing and Page | 4 involuntary. In reaching this determination, the Appellate Division did not consider the totality of the circumstances surrounding the waiver. Amicus will address the impropriety of this analysis, urging that, as long as the warnings imparted to someone being questioned include the four critical rights that were recognized in Miranda, anything else that might be imparted in the course of an interview, while relevant to a determination of the voluntariness of the waiver, is not the sole determinant of the propriety of that waiver. Rather, it must be considered as part of the totality of the circumstances which abides every determination of the waiver of constitutional rights. INTEREST OF THE AMICUS The District Attorneys Association of the State of New York (DAASNY) is a state-wide organization composed of elected District Attorneys from throughout New York State, the Special Narcotics Prosecutor of the City of New York, and their nearly 2900 assistants. Members of the Association are responsible for the investigation and prosecution of crimes pursuant to County Law Section 700. In conducting such prosecutions, members of DAASNY regularly litigate questions of the admissibility of statements taken in the course of a custodial interrogation. Page | 5 Amicus’s interest is thus plain; the manner in which a court is to determine the voluntariness of the waiver of rights preceding such statements is crucial to the ability of members of the Association to seek and obtain admission of those statements. ARGUMENT AS LONG AS THE MIRANDA WARNINGS ADMINISTERED TO SOMEONE BEING QUESTIONED INCLUDES THE FOUR CRITICAL RIGHTS IDENTIFIED BY THE SUPREME COURT, THE PROPRIETY OF ANY WAIVER OF THOSE CONSTITUTIONAL RIGHTS IS JUDGED BY AN EXAMINATION OF THE TOTALITY OF THE CIRCUMSTANCES OF THE WAIVER In reversing the orders of the respective motion courts, the Appellate Division acknowledged that “[o]rdinarily, the question of whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined ‘upon an inquiry into the totality of the circumstances surrounding the interrogation,’ including an evaluation of the defendant's ‘age, experience, education, background, and intelligence.’” People v. Dunbar, 104 A.D.3d 198, 210 (2d Dept. 2013)1 1 Inasmuch as the Appellate Division’s full analysis of the issue was presented in Dunbar, and that court relied on Dunbar in reversing in both Lloyd-Douglas and Polhill, any specific Page | 6 (citations omitted). The court, however, concluded that it had no need to engage in a totality of the circumstances analysis prefatory -called preamble such that the warnings that had been administered were the equivalent of no warnings at all. In the words of the court, “[t]here is no indication in this case that, had the Miranda warnings simply been read to the defendant, without the information and suggestion contained in the preamble, he could not have understood them. Rather, the problem is that the defendant never received a clear and unequivocal advisement of his rights, and thus, the only element his age, experience, education, background, and intelligence could have contributed was independent knowledge of his rights.” Id. But while the obligation to administer Miranda warnings is a constitutional imperative, Dickinson v. United States, 530 U.S. 428 (2000), there is no specific litany by which these rights must be made known to an arrestee. California v. Prysock, 453 U.S. 355, 359 (1981); Florida v. Powell, 559 U.S. 50, 60 (2010).. Because there is no such catechism by which an arrestee must be advised of his rights, as long as “the now familiar reference to Dunbar should be understood as a reference to the analysis used by the Appellate Division in each of the three cases. Page | 7 warnings . . . . or their equivalent,” Rhode Island v. Innis, 446 U.S. 291, 297 (1980), have been administered, the question for a suppression court is not whether the specific language used by the interviewing officials complied with Miranda or whether it was flawed. Instead, the question is whether the totality of the circumstances surrounding the relinquishment of those rights demonstrates that the waiver was intelligent, knowing, and voluntary. Inasmuch as the Appellate Division refused to engage in the appropriate totality of the circumstances analysis, there must be a reversal and remittal to the Appellate Division with direction that it consider the suppression motion with due consideration for the totality of the circumstances surrounding the waiver of rights. The privilege against self-incrimination guarantees that no confession that has been extracted by threats or violence, direct or implied, or coerced may be admitted at trial. Bram v. United States, 168 U.S. 532, 542 ( 1897) . It “serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U.S. 436, 467 (1966). To insure that one in custody has not been compelled to incriminate oneself, the individual being questioned “must be warned prior to any questioning that Page | 8 he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. at 479. It is crucial that the individual being questioned be advised of all four of these critical factors. Dickerson v. United States, 530 U.S. at 435. As the Supreme Court has long recognized, “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self- incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” Miranda v. Arizona, 384 U.S. at 467. The interviewees’ waiver of those rights must be made not only with full understanding that he need not speak at all, but must be made with an equally clear understanding of the consequences of waiver of the privilege. Awareness of both of the privilege and the Page | 9 consequences of its waiver assures real understanding and intelligent exercise of the privilege. Miranda at 469. Equally critical is that branch of the warnings that advises an individual the right to have counsel present at any interrogation. The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Id. As this Court has observed in the right to counsel context, that “’[absent] the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender [his privilege against compulsory self-incrimination] when confronted with the coercive power of the State and its agents.” People v. Hawkins, 55 N.Y.2d 474 (1982). Thus, the requirement that an individual subjected to a custodial interrogation be advised that he is entitled to counsel and, if need be, at state expense serves as another layer of protection of the privilege against self-incrimination. It affords an interviewee, alone with law enforcement officials who do not have his interests at heart, an opportunity to seek advice from someone “on his side.” In these three cases, there has never been any dispute that each defendant had been advised of these four critical rights. In other words, Page | 10 these defendants were provided with the warnings that the Miranda Court deemed the only way to in which a court could be satisfied that an interviewee had the full range of information and opportunity to obtain assistance that would guarantee that any waiver of the critical rights outlined was indeed intelligent, knowing, and voluntary. Of course, that the warnings had been given and a statement made cannot, alone, demonstrate the validity of such waiver. The People must also show that the interviewee understood those rights. Berghuis v. Thompkins, 560 U.S. 370, 385 (2010). What this means, therefore, the question to be resolved is whether the waiver of those rights was knowing, intelligent and voluntary. And, it is here that the Appellate Division erred in refusing to utilize a totality of the circumstances test. It hardly bears repeating that all constitutional rights may be waived. Waiver of such rights must be knowing, voluntary, and intelligent and a rational decision reached, with full knowledge of the meaning of the waiver. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A waiver of Miranda rights need meet this standard. See Berghuis v. Thompkins, 560 U.S. at 385; North Carolina v. Butler, 441 U.S. 369, 375 (1979); Miranda v. Arizona, 384 U.S. at 475-75; see also Moran v. Burbine, 475 U.S. 412, 421 (1986) (a Page | 11 proper Miranda waiver must be made "voluntarily, knowingly and intelligently). The inquiry into voluntariness of a waiver has "two distinct dimensions": first, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. The totality-of-the-circumstances inquiry requires a court to examine all the circumstances surrounding the interrogation, including the suspect's age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. See Berghuis v. Thompkins, 560 U.S. at 383, citing Moran v. Burbine, 475 U.S. 412, 421 (1986). Page | 12 Hence, once a defendant/suspect/arrestee has been advised of the four critical Miranda elements – the right to remain silent, the right to counsel, the right to counsel at state expense, and the state’s right to use whatever statement might be made in the course of a prosecution – the question is no longer the adequacy of the warnings, but whether, viewing all the circumstances surrounding the waiver, that waiver may be said to have been knowing and voluntary. Certainly, this includes precisely what may or may not have been conveyed to the person being interviewed. After all, all Miranda requires, as a matter of law, is that the person being interviewed be advised that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. This, as noted, was done here. Thus, the Appellate Division’s view that a court need not inquire into the totality of the circumstances surrounding the waiver, once the person being questioned has been made aware of these critical rights, cannot be sustained. In the Appellate Division’s view, however, Missouri v Seibert, 542 U.S. 600, 608 (2004) barred use of the totality of the circumstances test when Page | 13 the adequacy of the Miranda warnings was at issue. Respectfully, this is far too broad a reading of Seibert. In the portion cited by the Appellate Division, the Seibert court merely reminded that the entire point of the Miranda framework was to insure voluntariness of statements by detailing the four necessary elements that the warnings must include. Once the warnings have been provided, the question becomes whether waiver of the rights discussed, has been voluntary. That is subject to totality of the circumstances analysis The reliance on Seibert is inapt for yet another reason. Seibert was not at all concerned with the circumstance in which warnings of some sort had been given and thus, the inquiry was whether the waiver of rights had been made with full understanding of the rights being given up. Instead, Seibert involved the so-called question first mode of interrogation in which the interrogators do not provide any information about the privilege against self-incrimination before an initial round of questioning, do so before a second round begins and obtain a waiver, then seek to admit the second statement as having been preceded by the four key Miranda components. But when questioning is not preceded by Miranda warnings at all, the question becomes, as the Supreme Court explained, Page | 14 whether it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment. Missouri v. Seibert, 542 U.S. at 611-612. By contrast, where there has been no questioning before administration of the Miranda warnings, the individual being questioned remains in a position to make an informed choice about waiver, the sine qua non of the voluntariness of a waiver. Indeed, this Court has observed that a person may waive his Miranda rights as long as he comprehends the immediate import of those warnings. People v Williams, 62 N.Y.2d 285, 289 (1984). And, of course, since the question is whether the individual comprehended the import of the warnings given him, that question must be resolved only with examination of the totality of the circumstances. Page | 15 The Appellate Division, however, distinguished Williams, asserting that the classic considerations when a totality of the circumstances test was being used were inapplicable where the warnings themselves were purportedly unclear or equivocal. It is difficult to see how this remotely means that a totality of the circumstances test is inappropriate. After all, California v. Prysock, supra, Eagan v. Duckworth, 492 U.S. 195 (1989), and Florida v. Powell, supra, all considered warnings whose lack of clarity has so struck the respective lower courts as having omitted a critical piece of information; in each, the Supreme Court concluded that the totality of the warnings had satisfied Miranda. This, in amicus’ view, simply reflects that, as long as all four critical warnings have been provided, a suppression court must decide, whether the totality of the circumstances of the waiver of rights demonstrates that that waiver was a valid one. That the test for propriety of the waiver of Miranda rights, once the four critical aspects of those rights has been explained, is totality of the circumstances is only logical. Waiver of the right to counsel at trial, People v. Providence, 2 N.Y.3d 579, 583 (2004), the voluntariness of consent to search, Schneckloth v. Bustamente, 412 U.S. 218, 227 (1973), and, perhaps most significantly, the voluntary nature of a plea of guilty, People v Brown, Page | 16 14 N.Y.3d 113, 118 (2010), are all subject to the totality of circumstances test. Surely, if the voluntary nature of a defendant’s decision to give up his liberty by pleading guilty is subject to that test, the waiver of his rights to counsel and remain silent must be judged by the same standard. There is simply no reason to apply a different standard here. The defendants in each of these cases were advised of the four critical Miranda elements and were thus provided with the information that the Supreme Court has required before concluding that an interviewee has made an informed decision on waiving the rights described. Indeed, because the four crucial elements had been made known to these defendants before their respective waivers, application of a different standard is contrary not only to this Court’s decision in People v Williams, 62 N.Y.2d at 289, but to the Supreme Court’s pronouncements in such cases as Berghuis v. Thompkins, 560 U.S. at 385 and North Carolina v. Butler, 441 U.S. at 375 as well. * * * * * * In Miranda v. Arizona, the Supreme Court drew a bright line, enabling courts to easily distinguish between those custodial statements that had been made with full understanding of the implications of the Page | 17 statement and those which, while voluntary in the classic sense, were involuntary because the questioner crossed that bright line. The line, of course, was the litany of four critical warnings without which it could not be said that the decision to confess was made freely and intelligently. That line was not crossed in any of these three cases for each of the defendants was advised that he had the right to remain silent, that anything he said could be used against him, that he had the right to an attorney, and that that right would be honored at state expense if necessary. That being the case, the question for the Appellate Division was not whether a flaw in the warnings rendered them insufficient or confusing; rather, it was whether the subsequent waiver of those rights was, after consideration of the totality of the circumstances, knowing, intelligent and voluntary. The Appellate Division did not consider these cases in that fashion. Hence, the matters must be remanded to that court for de novo consideration of these appeals using the appropriate standard. Page | 18 CONCLUSION The orders of reversal in each case should be reversed and the matters remitted to the Appellate Division for consideration of the suppression rulings using the correct standard. Respectfully submitted, FRANK A. SEDITA II Erie County District Attorney President, District Attorneys Association Of the State of New York c/o Richmond County District Attorney 130 Stuyvesant Place Staten Island, NY 10301 718-556-7010 MORRIE I. KLEINBART DONNA MILLING ASSISTANT DISTRICT ATTORNEYS Of Counsel July 25, 2014 Page | 19