The People, Respondent,v.Michael Johnson, Appellant.BriefN.Y.February 6, 2018To be argued by DE NICE POWELL_(15 Minutes ) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MICHAEL JOHNSON, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY APPELLATE ADVOCATES Attorney for Defendant-Appellant 111 John Street, 9th Floor New York, NY 10038 (212) 693-0085 FAX: (212) 693-0878 DE NICE POWELL Of Counsel July 28, 2017 APL-2016-00167 INDEX PRELIMINARY STATEMENT 1 ARGUMENT POINT I ABSENT ANY EVIDENCE OF WHAT OCCURRED OVER THE MORE THAN 25-HOUR PERIOD DURING WHICH THE POLICE DETAINED AND INTERROGATED APPELLANT BEFORE HE INCULPATED HIMSELF, THE PEOPLE FAILED TO CARRY THEIR HEAVY BURDEN OF PROVING, BASED ON THE TOTALITY OF ALL THE CIRCUMSTANCES, THAT APPELLANT'S STATEMENTS WERE VOLUNTARY 1 The People's Failure to Prove that Appellant's Statements Were Voluntary Beyond a Reasonable Doubt Was Clearly Preserved A. 3 The Court Has the Power to Review Whether the People Proved Appellant's Statements Were Voluntary Beyond a Reasonable Doubt B. 6 C. The People's Argument that They Sustained Their Burden of Proof is Based on Rank Speculation. Claims Unsupported by the Record, and Unpreserved Assertions 10 POINT II WHEN THE SHOOTER'S IDENTITY WAS THE CRITICAL ISSUE IN THE CASE, THE COURT'S REFUSAL TO GIVE A MISSING WITNESS CHARGE AS TO THE COMPLAINANT'S ADULT SON, WHOSE DESCRIPTION OF THE ASSAILANT'S HEIGHT DIFFERED FROM APPELLANT'S HEIGHT AND THE HEIGHT ESTIMATES BY THE OTHER EYEWITNESSES, DENIED APPELLANT A FAIR TRIAL 25 CONCLUSION 29 TABLE OF AUTHORITIES CASES: Arizona v. Fulminante. 499 U.S. 298 (1991) 23 Corlev v. United States. 556 U.S. 303 (2009) 18 Culombe v. Connecticut. 367 U.S. 568 (1961) 19 Halev v. Ohio. 332 U.S. 596 (1948) Mallorv v. United States. 354 U.S. 449 (1957) 19 18 Miranda v. Arizona. 384 U.S. 436 (1966) 20 People v. Anderson. 42 N.Y.2d 35 (1977) 9,10,12,15 People v. Bethea. 67 N.Y.2d 364 (1975) 20 People v. Bigelow. 66 N.Y.2d 417 (1985) 8 People v. Chappie. 38 N.Y.3d 112 (1975) 20 People v. Crimmins. 36 N.Y.2d 230 (1975) 23 People v. Cunningham. 49 N.Y.2d 203 (1980) . . 16 People v. DeBour. 40 N.Y.2d 210 (1976) 3,4,6 People v. Dodt. 61 N.Y.2d 408 (1984) 9,12,13 People v. Edwards. 95 N.Y.2d 486 (2000) 6 People v. Edwards. 69 N.Y.2d 814 (1987) 8 People v. Ferro. 63 N.Y.2d 316 (1984) 16 People v. Gonzalez. 68 N.Y.2d 424 (1986) 27 People v. Guilford. 21 N.Y.3d 205 (2013) . . 2,9,10,12,13 20,22 People v. Holland. 48 N.Y.2d 861 (1979) 10 People v. Huntlev. 15 N.Y.2d 72 (1965) 10 People v. Jin Cheng Lin. 26 N.Y.3d 701 (2016) . . 9,10,12,17 ii People v. Johnson. 139 A.D.3d 967 (2d Dept. 2016) . 8,12,14 25 People Johnson. 66 N.Y.2d 398 (1985) 8v. Kitching, 78 N.Y.3d 532 (1991)People 26v. People Leonti. 18 N.Y.2d 384 (1966) 9v. People Mateo. 2 N.Y.3d 383 (2004) 10v. McRav. 51 N.Y.2d 594 (1980)People 6,8v. Morales. 65 N.Y.2d 997 (1985)People 9v. People Nieves. 67 N.Y.2d 125 (1986) 16v. Panton. 27 N.Y.3d 1144 (2016)People 4v. People v. Paulman. 5 N.Y.3d 122 (2005) 20 People v. Prado. 4 N.Y.3d 725 (2004) 3,6 People v. Siverston. 29 N.Y.3d 1006 (2017) 6 People v. Tambe. 71 N.Y.2d 492 (1988) 8 People v. , 22 N.Y.3d 629 (2014) 10,12 People rel. Maxiam v. Brown. 77 N.Y.2d 422 (1991) . . 17ex Pennsylvania. 338 U.S. 62 (1949)Turner v. 19 Westover v. United States. 384 U.S. 436 (1966) 20 CONSTITUTIONAL PROVISIONS AND STATUTES N.Y. Const., art. I, §6 25 U.S. Const., Amend. XIV 25 P.L. §70.02 14 P.L. §110/125.25(1) 14 P.L. §120.10(1) 14 P.L. §160.15(2) 14 C.P.L. §470.05 4,6 iii OTHER AUTHORITIES CJI2d[NY] A Party's Failure to Call a Witness. 27,28 Saul M. Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations. 34 Law & Hum. Behav. 3 (February, 2010) 18 iv COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MICHAEL JOHNSON, Defendant-Appellant. PRELIMINARY STATEMENT This Reply addresses certain arguments made in Respondent's Appellant will otherwise rest onBrief regarding POINTS I and II. his main brief. ARGUMENT POINT I ABSENT ANY EVIDENCE OF WHAT OCCURRED OVER THE MORE THAN 25-HOUR PERIOD DURING WHICH THE POLICE DETAINED AND INTERROGATED APPELLANT BEFORE HE INCULPATED HIMSELF, THE PEOPLE FAILED TO CARRY THEIR HEAVY BURDEN OF PROVING, BASED ON THE TOTALITY OF ALL THE CIRCUMSTANCES, THAT APPELLANT'S STATEMENTS WERE VOLUNTARY. At appellant Michael Johnson's trial for attempted second- degree murder, first-degree robbery, and related offenses, the People introduced a statement he made the second day he was detained. Defense counsel moved to suppress appellant's statements on the ground that they were made involuntarily. The People have the heavy burden of proving beyond a reasonable doubt, based on a "totality of the circumstances," that a defendant's statement was made voluntarily. People v. Guilford. Evidence at the suppression hearing established that the police detained appellant incommunicado in a precinct room for more than 25 hours after arrest, during which he was subjected to successive rounds of interrogation by multiple law enforcement agencies before a Queens detective interrogated him and obtained a statement regarding a carjacking at issue. Nonetheless, the People adduced no evidence of what occurred during the multiple interrogation sessions preceding the statement, including what interrogation tactics were used against him and whether appellant received and waived his Miranda rights or invoked his right to counsel, and whether he received his basic human necessities. 21 N.Y.3d 205, 208 (2013). Given these critical gaps in the People's proof, appellant's statements should have been suppressed (Appellant's brief, pp. 33- 52). The People argue that defense counsel did not preserve his claims that appellant's statements were involuntary and that the prosecution failed to carry their heavy burden of proving the They also contend that the voluntariness issue is a mixed question of law and fact beyond the review power of this Court because the determination that appellant's statements were made voluntarily has record support. Finally, the People contend that the admission of the statement in evidence was harmless, claiming that evidence of appellant's identity as the assailant who shot and robbed the complainant was overwhelming. All of these contentions should be rejected. voluntariness of the statements. 2 The People's Failure to Prove that Appellant's Statements Were Voluntary Beyond a Reasonable Doubt Was Clearly Preserved A. The People argue that appellant did not preserve the issues raised on appeal because defense counsel allegedly "never claimed, in any motion papers or at the hearing, that [appellant] was not allowed to sleep or eat" (Respondent's brief, p. 40). Defense counsel also purportedly "never" argued that the police deliberately "delayed his arraignment in order to obtain a confession" and that the People failed to "establish what had occurred at the precinct" (Respondent's brief, p. 21). The record refutes these contentions, which were previously raised by the People and implicitly rejected by the Appellate Division. The People's failure to sustain their burden of proving the voluntariness of appellant's statements was preserved by defense counsel's motion to suppress the statements on voluntariness grounds, defense counsel's arguments at the hearing's conclusion based on testimony she elicited at the hearing, the prosecutor's arguments opposing suppression, and the court's decision denying suppression. (preservation may be based on court's "specific findings" on party's objection); People v. DeBour. 40 N.Y.2d 210, 214 (1976)(preservation found based on defense counsel's contentions made in suppression motion; defense counsel's "mere emphasis" of "one prong of attack over another" during cross-examination pursued People v. Prado. 4 N.Y.3d 725, 726 (2004) 3 at suppression hearing will not constitute a failure to preserve); C.P.L. §470.05. In a motion to suppress appellant's statements, defense counsel argued that the statements were made involuntarily in violation of C.P.L. §§60.45(2)(b)(i) and (ii), and the federal and because they were obtained "twenty-six tostate constitutions, twenty seven hours after his arrest," during which he was questioned by "law enforcement authorities without being advised of his Miranda warnings" (A 1380 [Omnibus Motion, Motion to Suppress Defense counsel also explicitly claimedStatements, p. 14]J.1 that, after the police arrested appellant, he "was unnecessarily held in custody for purposes of interrogation without food, drink, water and sleep without being brought to court for arraignment" (A Thus, defense counsel's suppression motion, alone, preserved the issues raised on appeal. DeBour. 40 N.Y.2d at 214; cf. People v. Panton. 27 N.Y.3d 1144, 1145 (2016)(particular ground unpreserved because not raised "either in [defendant's] suppression motion or at the hearing"). At the conclusion of the hearing, relying on testimony she had elicited, defense counsel specifically argued that the People failed to carry their burden of proving appellant's statements were made voluntarily (A 135-136). Reminding the court that the police detained appellant for "over 24 hours and possibly even" longer 1380). Numbers in parentheses preceded by "A" refer to the Appendix. 4 "because it was not documented" by Detective Roberts, defense counsel highlighted evidence she had elicited at the hearing that multiple law enforcement agencies interrogated appellant during the unnecessary delay in arraignment, in violation of his rights and resulting in a "forced confession" (A 134-136). The prosecutor's arguments opposing suppression further placed the court on notice of the voluntariness issue before it. The prosecutor contended that she carried her burden of proving appellant's statements were voluntary (A 140-144); the prolonged pre-arraignment delay was irrelevant in the "grand scheme of this (A 141); although Detective Roberts was not the "first individual[]" who interrogated case," because "there was a lot going on" appellant, what occurred prior to his interrogation was irrelevant because the People intended to use only appellant's statement made to Roberts, made after appellant waived his Miranda rights (A 142-143); and the contents ofadministered by Roberts in which he minimized his role in theappe11ant's statement, shooting, proved that it was made voluntarily (A 143-144). In denying suppression, the court ruled that appellant's statements to Roberts were voluntary, reasoning that they were made after Roberts gave appellant his Miranda rights, which he waived, and were "in large measure . . . exculpatory in terms of the most serious count that appears in th[e] indictment" (A 151). This ruling denying suppression further preserved the issues raised 5 Prado. 4 N.Y.3d at 726; People v. Edwards. 95in this appeal. N.Y.2d 486, 491, n. 2 (2000)(issue preserved by written decision expressly deciding question in response to "protest by a party"); C.P.L. §470.05(2). Thus, contrary to the People's contentions, appellant's claims Prado. 4 N.Y.3d at 726; DeBour, 40 N.Y.2d atwere amply preserved. 214; C.P.L. §470.05. The Court Has the Power to Review Whether the People Proved Appellant's Statements Were Voluntary Bevond a Reasonable Doubt B. The People contend that the voluntariness of appellant's statements is a mixed question of law and fact beyond the Court's They cite People v.review power (Respondent's brief, pp. 21-23). Sivertson. 29 N.Y.3d 1006 (2017), for the proposition that the "rule applies 'where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inferences Id. at 1007, quoting from People v. McRay. 51 N.Y.2d The mixed question rule does not apply to the instant case, however, because the issue on appeal does not involve "disputed" facts, the "credibility" of witnesses, or different, reasonable inferences that may be drawn from the evidence, but concerns the minimum showing required for the People to meet their burden of proving voluntariness and whether the Appellate Division to be drawn. / n 594, 601 (1980). 6 applied an incorrect legal standard. The voluntariness issue is, therefore, reviewable by this Court. Here, the issue raised on appeal is whether the People sustained their burden of proof in the absence of evidence about what occurred in the 25 hours preceding the final interrogation of appellant, which produced the statement the People wanted to Although the evidence established that appellant was detained at the precinct incommunicado for many hours after his arrest, and was then interrogated by officers from multiple law enforcement agencies for up to six and one-half hours, the People failed to establish what occurred in the hours leading up the successive rounds of interrogation preceding Roberts's interrogation, much less what occurred during each of these other interrogation sessions. This question, involving a critical gap in the People's proof, has nothing to do with disputed facts, credibility of witnesses, or differing inferences that can be drawn from the evidence, and is an issue well within this Court's power to review. introduce at trial. Rather than asking the Court to make findings of fact outside its power of review, appellant raises the issue of the minimum showing required to prove voluntariness and whether the People failed to meet their burden of proof by not presenting any direct evidence of what occurred in the 25 hours preceding the Roberts Appellant argues that, without proof of what happened during this period - including, inter alia, whether he was afforded access to basic needs (such as food, drink, sleep, and interrogation. 7 bathroom facilities) and was given his Miranda warnings during his interrogation by other law enforcement officers - the People could not meet their heavy burden of proving the voluntariness of appellant's subsequent statements. When an issue arises "as to the minimum showing necessary to establish [the legal standard for voluntariness]," "a question of law is presented for review" by this Court. MeRay. 51 N.Y.2d at 601; accord People v. Tambe. 71 N.Y.2d 492, 500-501 (1988); People v. Edwards. 69 N.Y.2d 814, 815 People v. Biaelow. 66 N.Y.2d 417, 420-421 (1985); People v. Johnson. 66 N.Y.2d 398, 402 (1985). (1987); This appeal presents such a reviewable issue. Moreover, appellant argues that, by discounting this absence of proof and effectively shifting the burden of proof to the defense to establish that appellant was not provided the basic necessities, the Appellate Division majority applied an incorrect legal standard. People were required to present direct evidence that appellant was given access to food, water, and other necessities in order to prove appellant's statements were voluntary, and the majority had As the Appellate Division dissenter held, the erroneously shifted the burden of proof to appellant in violation of well-settled legal principles. People v. Johnson. 139 A.D.3d 967, 977-978 (2d Dept. 2017) (A 9-11). The majority also erroneously considered the trial evidence - the lack of evidence that the statements were involuntary in deciding that the voluntariness standard had been met. Since the appeal involves the Appellate Division's application of an erroneous legal standard to 8 the undisputed facts, the voluntariness issue is reviewable for People v. Morales. 65 N.Y.2d 997, 998 (1985).this reason as well. Finally, this Court has repeatedly held that it has the specific power to review whether the People carried their heavy burden of proving whether a defendant's statement was made voluntarily. See People v. Jin Cheng Lin. 26 N.Y.3d 701, 719 (2016)(Court has power to determine whether the lower court's finding is supported by the record or the People's proof does not meet the reasonable doubt standard "at all"); Guilford. 21 N.Y.3d at 208 (Court has power to determine if People's showing that a defendant's statement was voluntary was "sufficiently made"); People v. Leonti. 18 N.Y.2d 384, 389 (1966)(Court has power to determine if the record shows "either that there is no evidence whatever, or that the evidence did not, as a matter of law, come up to the [requisite] standard" of proof that a confession was voluntary beyond a reasonable doubt); see also People v. Dodt, 61 N.Y.2d 408, 415 (1984)(when People failed to come forward with transmitted description of perpetrator, evidentiary gap prevented lower court from drawing requisite inference to uphold police conduct); People v. Anderson. 42 N.Y.2d 35, 38-39 (1977). For all these reasons, the Court has the power to review the issue presented in this case. 9 The People's Argument that They Sustained Their Burden of Proof is Based on Rank Speculation. Claims Unsupported by the Record, and Unpreserved Assertions C. It is the People's "heavy burden" to prove beyond a reasonable doubt that a defendant's statement they intend to rely upon at trial was made voluntarily. Jin Cheng Lin. 26 N.Y.3d at 719; People v. Thomas. 22 N.Y.3d 629, 641 (2014); People v. Holland. 48 N.Y.2d 861, 862 (1979); Anderson. 42 N.Y.2d at 38; People v. Huntlev. 15 N.Y.2d 72, 78 (1965). "A series of circumstances may each alone be insufficient to cause a confession to be deemed involuntary, but yet in combination they may have that qualitative or quantitative effect []." omitted]. Anderson. 42 N.Y.2d at 38 [citation Therefore, in assessing the voluntariness of a defendant's statement, a court "must consider the totality of the circumstances" that generated it, Jin Cheng Lin. 26 N.Y.3d at 719, including "all of the surrounding circumstances" of the interrogation. People v. Mateo. 2 N.Y.3d 383, 413 (2004)(emphasis added). See also Guilford. 21 N.Y.3d at 206 ("Proof of voluntariness compatible with due process . . . will depend upon the particular circumstances 'the totality' of each case"); Anderson. 42 N.Y.2d at 38 (same). Moreover, the People's showing must be "particularly responsive" to the claimed constitutional violation. Guilford. 21 N.Y.3d at 209. Thus, to carry their burden of proof, the People must prove "the entire course of events" culminating in a confession, Anderson. 42 N.Y.2d at 37, not merely the events immediately preceding it. 10 Here, having failed to prove the totality of all of the circumstances culminating in appellant's statements in this case, the People now engage in rank speculation about what "likely" occurred, asserting that the police treated appellant, "if not with complete speed, than [sic] fairly gently" (Respondent's brief, pp. 36-37). Implicitly conceding the lack of affirmative proof of what occurred preceding appellant's statements to Detective Roberts, the People argue that there is "no reason to believe" that appellant was "deprived of any necessity," subjected to any "coercive tactics," or denied his constitutional right to counsel by his interrogators during the many hours unexplained by any witnesses (Respondent's brief, p. 39-40). appellant's statement about the carjacking was voluntary because, after Detective Roberts gave appellant his Miranda rights, which he waived, appellant, whom they characterize as an "experienced criminal" having the ability to withstand coercive interrogation tactics, made a "mostly exculpatory" and almost "useless" statement (Respondent's brief, pp. 24, 26, 37). They contend that they proved The People's claim that during the prolonged period of custodial detention the police treated him "fairly gently" has no support in the record. The hearing evidence showed that, after Detective Roberts arrested appellant on May 14, Roberts detained him in the precinct for about 30 hours. Before Roberts interrogated him 25 hours into the prolonged detentive period, Port Authority, Secret Service, Suffolk County officers, and possibly Auto Crimes officers interrogated appellant. The People failed, 11 however, to call any of the officers from these agencies and produced no affirmative evidence of what occurred either in the period preceding these successive sessions or during each of them. Therefore, the People did not prove how appellant was treated preceding Roberts's interrogation, including whether his basic human needs were met. The People's conclusions are therefore wholly speculative and not based on anything in the record. As this Court acknowledged in Anderson. 42 N.Y.2d at 37-39, and more recently in Guilford. 21 N.Y.3d at 205, and Jin Cheng Lin. 26 N.Y.3d at 725, deprivation of sustenance and sleep can impair an individual's decision-making capacity and undermine the voluntariness of his statement. The Appellate Division majority in this case correctly acknowledged the lack of proof that appellant was provided with "basic necessities of life at the stationhouse" over the course of prolonged precinct detention, but, improperly shifting the burden of proof, Thomas. 22 N.Y.3d at 641, faulted defense counsel for failing to "offer" any "proof that [appellant] was denied these necessities." Johnson. 139 A.D.3d at 970. In Jin Cheng Lin, by contrast, the People presented direct evidence that the defendant was afforded these basic necessities. Additionally, improperly relying on trial evidence, Dodt. 61 N.Y.2d at 417, the majority in appellant's case dismissed the failure of proof, stating "the evidence presented at trial did establish that the defendant's statements were involuntary." 139 A.D.3d at 972. The People's assurances that there was "no reason to believe" that appellant was "deprived of any necessity," subjected to any 12 "coercive tactics," or denied his constitutional right to counsel by his interrogators (Respondent's brief, p. 39-40) cannot satisfy the People's burden of proving beyond a reasonable doubt that The People were required to present evidence from which the court could independently assess whether his statements were made voluntarily beyond a reasonable Their bare assurance that no coercive tactics were used, appellant's statement was voluntary. doubt. that his basic human needs were met, and that his rights were honored - without any record support - was obviously insufficient to meet their burden of proof. (People's proof must "correspond" to voluntariness conclusion); see also Dodt. 61 N.Y.2d at 415 (People must present suppression court "with facts, not assurances"). Guilford. 21 N.Y.3d 214-215 The People argue that appellant gave a "mostly exculpatory" statement in which he confessed guilt of "only lesser crimes he could not avoid admitting, but denying the more serious crime he knew he could not dispute," and that his statement was "just shy of useless" (Respondent's brief, pp. 24, 28, 37). purportedly exculpatory contents demonstrate, the People contend, that appellant made it voluntarily. Contrary to the People's argument, the statement about the carjacking was neither "mostly exculpatory" nor a confession to "only lesser crimes." Admitting that he and a man named "G" robbed the complainant, appellant described how he drove G to the crime scene and waited in the getaway car for G to execute the robbery. After hearing gunshots and seeing G drive away in the stolen car, The statement's 13 appellant drove the getaway car to a particular location where, as planned, he picked up G. Together they fled, and, as payment of his role in the robbery, G gave him four rolls of money and the keys to the stolen car. Therefore, contrary to the People's claim that the contents of appellant's statement demonstrated that it was made voluntarily because he confessed to "only" a "lesser crime," the statement constituted a confession to first-degree robbery, a class-B violent crime, the same class as attempted murder and first-degree assault. See P.L. §§110/125.25(1), 120.10(1), 160.15(2), 70.02. Moreover, the statement was anything but "useless" to the People. having obtained an indictment charging appellant for, inter alia. attempted murder, first-degree robbery, and first-degree assault, the People used the statement in summation to successfully urge the jury to convict appellant of all of these crimes (A 1256). The Appellate Division majority correctly determined that appellant admitted in his statement that he robbed the complainant, but found that appellant "provided his" "self-serving statement" "once he was faced with evidence of his guilt" - "that is, once he was faced with the victim's identification from the photo array." This finding, however, is unsupported There was no evidence adduced at the suppression hearing - and the People make no claim on appeal - that Roberts or any other officer confronted appellant with evidence of the complainant's identification from a photo array before he made the Indeed, Johnson. 139 A.D.3d at 69. by the record. statement. 14 The People argue that, given appellant's background as an "experienced" criminal, he was "unlikely awestruck or intimidated by the custody in which he found himself and unlikely to be swayed by the ordinary interrogation techniques" (Respondent's brief, p. 26). These speculative claims are also unsupported by the record, unpreserved for appellate review, and belied by evidence of a particularly unusual set of circumstances - successive rounds of interrogation by officers from multiple law enforcement agencies during a prolonged period of detention in the same precinct room with no apparent end in sight - which were hardly "ordinary." See Anderson. 42 N.Y.2d at 39 ("elementary psychological psychology" undoubtedly led defendant to subconsciously "feel that . . . if he failed to answer their questions, that they had all the time in the world to query him and that, if he was to be freed, it would be when his answers satisfied them"). Detective Roberts testified at the suppression hearing that, at arrest, appellant told him that he possessed a forged driver's license and identification card because he had felony convictions However, the People presented no evidence that he was interrogated by law enforcement agents during any of his prior contacts with the criminal justice system. basis, therefore, supporting the People's arguments that, "because of [appellant's] experience with the criminal justice system," he was "unlikely awestruck or intimidated" by "ordinary interrogation tactics" used against him and "more likely to understand and appreciate the significance" of his rights (Respondent's brief, pp. (A 46). There was no factual 15 Moreover, these factual claims were not raised below26-27, 29). and, therefore, cannot be raised for the first time on appeal. People v. Nieves. 67 N.Y.2d 125, 135-136 (1986). On cross-examination, Detective Roberts admitted that, in his absence, officers from Port Authority, Secret Service, Suffolk County, and possibly Auto Crimes, interrogated appellant before he interrogated him. Apparently not present during any of these interrogation sessions, Roberts did not testify about what the officers said or did during any of these sessions. Furthermore, the People failed to call any of the others officers who interrogated appellant, and adduced no evidence of the interrogation tactics used, whether the officers questioned appellant about any of the crimes involved in this case, and whether he invoked his rights to silence, foreclosing re-initiation of interrogation within a short period thereafter and without a fresh set of warnings, People v. Ferro. 63 N.Y.3d 316, 322 (1984), or to counsel, foreclosing any further interrogation. People v. Cunningham. 49 N.Y.2d 203 (1980). Failing to prove what occurred, much less what "tactics" were used by other law enforcement officials, the People provided no record support for their unsubstantiated claim that officers from these agencies used "ordinary" tactics (Respondent's brief, p. 26). Conceding that the police purposely delayed appellant's arraignment, the People do not claim that the delay was due to an inability to complete the administrative tasks necessary for arraignment. Instead, the People argue on appeal, as they did 16 below, that the more than 30-hour arraignment delay, in excess of the 24-hour delay the Court determined to be presumptively permissible in People ex rel. Maxian v. Brown. 77 N.Y.2d 422 (1991), was entirely lawful, caused by police investigation. This argument was explicitly rejected in Jin Cheng Lin. 26 N.Y.3d at 721-724. Construing C.P.L. §140.20(1), which mandates that when a warrantless arrest is made the police must "without unnecessary delay" bring the arrested person to court for arraignment, the Court in Jin Cheng Lin stated that the statute does not provide an "ongoing investigation" exception. Therefore, while the police may not have been required to process appellant for arraignment "the moment that they could charge him with a single crime" (Respondent's brief, p. 35), the law clearly did not permit them to arrest him and then delay his arraignment for more than 30 hours to interrogate him in order to shore up their case. That is precisely what Detective Roberts admitted doing. The hearing evidence established that the police deliberately delayed appellant's arraignment, even though they had probable cause as to numerous crimes shortly after Roberts arrested him on Moreover, Roberts testified that, despite obtaining complainant Milton Miller's identification of appellant as the gunman at 2:30 p.m. on May 15, Roberts deliberately delayed May 14. appellant's arraignment in order to give every officer who wished to interrogate appellant the opportunity to do so. The People concede that between 2:00 p.m. and 8:30 p.m. on May 15 after 17 Miller's positive identification, officers from various law enforcement agencies interrogated appellant (Respondent's brief, p. 36). After affording these officers the opportunity to question appellant, Roberts extended the delay even further, interrogating him at 8:30 p.m. on May 15, more than 25 hours after his arrest the preceding day. w[D]elay for the purpose of interrogation is the epitome of 'unnecessary delay.'" Corlev v. United States. 556 U.S. 303, 308 (2009)(quoting Mallory v. United States. 354 U.S. 449, 455-456 (1957)). The People concede that, immediately preceding Roberts's interrogation, multiple law enforcement officers may well have interrogated appellant in succession for as long as six and one- half hours without any significant break. Nonetheless, dismissing the lengthy detention and interrogation as "ordinary" and "relatively short," they conclude that appellant was treated lawfully and "with complete speed" (Respondent's brief, p. 26, 36- 37). These arguments ignore studies and cases rejecting prolonged interrogation as an acceptable means of interrogation, because such See Saul M. Kassin, et al., Police-Inducedtactics are coercive. Confessions: Risk Factors and Recommendations. 34 Law Hum Behav 3 (2010), p. 16 ("Consistent with cautionary advice from Inbau et (2001] against exceeding 4 hours in a single session," respondents to a survey of over 600 North American police al., investigators estimated that the average length of a "typical interrogation" is 1.60 hours. In a 2004 study of 125 proven false 18 confessions, researchers found that, in cases where interrogation time was recorded, 34% lasted 6 to 12 hours); see e.g. Culombe v. Connecticut, 367 U.S. 568, 621-635 (1961) (statement involuntary when, without informing defendant of his constitutional rights, police interrogated him repeatedly, though intermittently and never more than three hours on any single day, over the course of five days, about several crimes); Turner v. Pennsylvania. 338 U.S. 62 (1949)(same, when, after making a warrantless arrest, police interrogated Turner incommunicado over course of several days, although never more than six hours at a time, until he confessed); Haley v. Ohio. 332 U.S. 596 (1948)(same, when police isolated 15- year-old defendant from family during five-hour precinct interrogation, during which his attorney was turned away). The People also argue that they established that appellant's statement was made voluntarily because it was made "only after he had been advised of, and knowingly waived, his Miranda rights" (Respondent's brief, pp. 24, 27-28). The People failed to prove, however, that, apart from Roberts, the officers who also interrogated appellant post-arrest gave Miranda rights to him (A 99). Detective Roberts testified that, "to [his] knowledge," none of the other officers who questioned appellant preceding his interrogation gave him his Miranda rights. He explained that he did not receive a copy of the rights from other officers who also interrogated appellant, which, he "imagined," he would have received had the rights been administered (A 98-99). 19 To be effective, Miranda rights must be given before an individual is subjected to custodial interrogation. Arizona. 384 U.S. 436, 444 (1966); People v. Bethea. 67 N.Y.2d 364, Miranda v. 367 (1986); People v. Chappie. 38 N.Y.2d 112, 115 (1975). In Chappie. 38 N.Y.2d at 115, officers questioned Chappie and obtained his warned statement after initially obtaining an unwarned Relying on Westover v. United States. 384 U.S. 436 (1966), the Court suppressed Chappie's warned statement, stating: statement. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning. Chappie. 38 N.Y.2d at 115. In Bethea. 67 N.Y.2d at 367, an officer obtained a warned statement from the defendant during a precinct interrogation, after initially obtaining an unwarned statement en route to the stationhouse. Citing Chappie. the Court again suppressed the defendant's warned statement, because there was no significant break in time between the unwarned and warned statements. Id. at Thus, when the police subjecting an individual to successive rounds of interrogation obtain an improper unwarned statement that gives rise to a subsequent Mirandized statement as part of a single chain of events, the warned statement must be suppressed because there is inadequate assurance that the late Miranda warning was effective in protecting the individual's constitutional rights. 368. Id. 20 Here, the evidence showed that, immediately preceding Roberts's interrogation session, appellant was subjected to successive rounds of interrogation apparently without Miranda warnings. Therefore, in order to demonstrate that the Miranda warnings given by Roberts were effective, the prosecution had to prove that there was "a pronounced break in the interrogation," returning appellant to the "status of one who [was] not under the influence" of the unwarned interrogation. Chappie. 38 N.Y.2d at 115. In determining whether a defendant's post-Miranda statement following unwarned interrogation was made after an effective waiver of Miranda rights, relevant factors include the length of time between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had expressed a willingness to speak to the police. People v. Paulman, 5 N.Y.3d 122, 131-132 (2005). "No one factor is determinative." Id. at 131. The People entirely failed to make the required showing. In any event, as the Court recognized in Guilford, that timely Miranda rights were given and waived is not enough to sustain the People's burden of proof when, as in the instant case, the claim of involuntariness is based on actual coercion involving an individual's physical, cognitive, and emotional depletion. 21 21 N.Y.3d at 209. The People's proof must be "particularly responsive to the claims actually made." Id. Thus, in Guilford, the Court held that the People failed to carry their burden of proving the voluntariness of Guilford's statement made after an eight-hour break in the interrogation, despite the presence of counsel, because the People failed to prove whether the defendant ate, slept, or was given an opportunity to do so during the break, and that the presence of counsel ameliorated the coercive tactics deployed before counsel's entry. Evidence that appellant voluntarily waived Miranda rights given to him by Roberts 25 hours into his detention clearly did not Given appellant's claims, the Id. at 212-215. resolve the voluntariness issue. People were required to prove what occurred in each of the interrogation sessions preceding that by Roberts, including what interrogation tactics were used; whether, in violation of appellant's constitutional rights, the officers obtained any statements relating directly or indirectly to the crimes for which he was tried in this case; and whether the officers provided The People failed to do so. Thus, given the inadequate record, which does not support the Appellate Division's voluntariness determination, the People failed, as a matter of law, to produce sufficient evidence proving beyond a reasonable doubt that appellant's statements were made voluntarily. for his basic human needs. Finally, contrary to the People's contention (Respondent's brief, pp. 40-42), the erroneous denial of suppression cannot 22 People v.possibly be deemed harmless beyond a reasonable doubt. Crimmins. 36 N.Y.2d 230, 240-241 (1975). As the Supreme Court stated in Arizona v. Fulminante. 499 U.S. 298, 296 (1991), "a confession is like no other evidence. Indeed, "the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him . . . ." Undoubtedly understanding the power appellant's confession had to persuade the jury to convict him, the prosecutor focused the jury's attention on it during her closing remarks, arguing that appellant's statement admitting that he was present when the shooting occurred bolstered the credibility of Carlos Nicholls, a life-long criminal with a vast criminal history who testified against appellant in exchange for an extremely favorable plea deal Nicholls, who gave the police the gun used to shoot Miller only when he was arrested and faced up to 90 years for multiple federal crimes, claimed that he had no involvement in the robbery and that appellant admitted his involvement and gave the Clearly, Nicholls had every incentive to divert blame from himself and the "associates" with whom he admitted he had (A 1256). gun to him. stolen numerous cars, and to cooperate against appellant, in order to reduce his federal sentence. See Fulminante. 499 U.S. at 297- 298 (not harmless when prosecution emphasized the erroneously admitted confession in its opening and closing statements). That appellant had Miller's car keys was hardly "[d]amning" evidence when he possessed them three days after the car theft (Respondent's brief, p. 41). Notably, no forensic evidence tied 23 appellant to the car or the gun. Appellant's admission that he was present when Miller was robbed and shot, and was "involved" in the Without appellant's statement, the People's case would have been based on Miller's highly problematic identification and Nicholls's self-serving carjacking was obviously prejudicial. accusation. Miller admitted that the robber wore a mask concealing most of his face during the 10:00 p.m. incident. Since Miller did not know if the gunman wore gloves because it was too dark to see, his ability to reliably identify his masked assailant was highly suspect at best. Thus, the court's erroneous refusal to suppress appellant's statements was not harmless beyond a reasonable doubt. Accordingly, the judgment should be reversed, the statements suppressed, and a new trial ordered. 24 POINT II WHEN THE SHOOTER'S IDENTITY WAS THE CRITICAL ISSUE IN THE CASE, THE COURT'S REFUSAL TO GIVE A MISSING WITNESS CHARGE AS TO THE COMPLAINANT'S ADULT SON, WHOSE DESCRIPTION OF THE ASSAILANT'S HEIGHT DIFFERED FROM APPELLANT'S HEIGHT AND THE HEIGHT ESTIMATES BY THE OTHER EYEWITNESSES, DENIED APPELLANT A FAIR TRIAL. Mark Miller, the complainant's adult son, gave the police a description of the assailant that materially differed from that given by prosecution witnesses for the first time at trial and from The People failed to call the son as a Although the shooter's identity was the key issue in the case, the court refused to give a missing witness charge, thereby denying appellant his rights to due process and a U.S. Const., Amend. XIV; N.Y. Const., art. I, §6. appellant's appearance. witness at trial. fair trial. On appeal, the People make no claim, and the Appellate Division majority did not find, that defense counsel failed to make the required prima facie showing that appellant was entitled to a missing witness charge. Indeed, the Appellate Division majority expressly stated that defense counsel "made a prima facie showing that the victim's son [Mark] could be expected to testify favorably to the People [citation omitted]." People v. Johnson. 139 A.D.3d 967, 973 (2d Dept. 2016)(A 6-7). Instead, implicitly conceding that Mark's description of his father's assailant would not have been cumulative, the People make the novel argument, raised for the first time on appeal, that appellant was not entitled to the charge because defense counsel did not show that Mark's testimony "as a whole would not have been 25 cumulative" (Respondent's brief, pp. 42, 44; emphasis added). They contend that "there was no reason to believe" that Mark's testimony "would have been non-cumulative, except in one minor respect, his general estimate of the height of the shooter," disentitling appellant to a missing witness charge (Respondent's brief, p. 42). Further, had a "generic" missing witness charge been given, appellant would have achieved a "windfall," because, they reason, it would have "allowed the jury to infer that Mark's testimony would have been adverse to the People in any number of respects or even in its totality, allowing the jury to speculate that . . . the son would have testified that [appellant] was not the shooter" (Respondent's brief, meritless. 46). The People's contentions areP- To be entitled to a missing witness charge, the party requesting the charge is not required to demonstrate that the uncalled witness's entire testimony would be non-cumulative. Rather, a party is entitled to the charge when the uncalled witness is "knowledgeable about a material issue" "already in the case." People v. Kitching, 78 N.Y.2d 532, 536 (1991). The complainant was the only eyewitness to identify appellant as the perpetrator, but he admitted the gunman wore a mask that concealed most of his face and that it was so dark he could not tell whether the gunman wore gloves. Mark's description of the assailant's height, which he had given to the police immediately after the shooting, did not comport with appellant's height and was markedly different from the height 26 descriptions given by the People's witnesses for the first time at Although other prosecution eyewitnesses who testified at trial were also interviewed that night, none described the gunman's height. Only Mark was able to do so, describing him as either 6'1" or 6'2" tall, when appellant was only 5'10" (A 1188). His height clearly was neither a "general estimate" nor a "minor" detail of little significance (Respondent's brief, p. 42). Indeed, under the circumstances, there was no basis for finding Mark's testimony, which was obviously probative of the gunman's identity, immaterial or irrelevant. Gonzalez. 68 N.Y.2d 424, 430 (1986)(when identity was the issue, potential testimony of uncalled witness who observed the crime can "hardly" be considered "immaterial or irrelevant"). trial. description of 6'1" or 6'2" See People v. The People's complaint that a "generic" missing witness charge would sweep too broadly, giving appellant an undeserved "windfall," is entirely meritless. The pattern missing witness charge, which specifically permits and requires that it be modified based on the material issue upon which the uncalled witness is knowledgeable, provides, in pertinent part, that the charge delineate the "issue" of which the missing witness "has relevant knowledge," for example, "whether the defendant was correctly identified as the person who committed the charged crime." CJI2d[NY] A Party's Failure to Call a Witness. It further instructs: The fact that [the missing witness] was not called as a witness permits, but does not require, an inference that had he/she been 27 called, his/her testimony would not have supported the [People's/defense's] position on that issue. CJI2d[NY] A Party's Failure to Call a Witness, (emphasis added). Therefore, the pattern charge, modified as required, would have informed the jury (1) that one of the issues in the case was whether appellant was correctly identified as the gunman and (2) based on the People's failure to call Mark Miller, who described the gunman's height to the police immediately after the shooting, the jury was permitted, but not required, to infer that had he been called his testimony would not have supported the People's position on that issue. CJI2d[NY] A Party's Failure to Call a Witness. Obviously, to avoid an adverse inference instruction, the People were required to call Mark Miller as a witness. Contrary to the People's contention that appellant's "insistence that the charge was critical is belied" by defense counsel's failure to "ask the jury to question why Mark did not testify" (Respondent's brief, p. 48), it is not surprising that counsel did not make this argument in summation. Given the People's failure to call Mark as a trial witness, there was no evidence from which to urge the jury that the People failed to call him because, contrary to the People's eyewitnesses who testified, he described the assailant as 6'1" to 6'2" tall - an observation he clearly could have made in the moments he saw the man confronting his father. When appellant's identity as the gunman was the critical issue in the case, the court's refusal to grant defense counsel's request 28 for the missing witness charge denied appellant his due process right to a fair trial. Thus, the judgment must be reversed and a new trial ordered. CONCLUSION FOR REASONS SET FORTH IN APPELLANT'S MAIN AND PRO SE SUPPLEMENTAL BRIEFS AND THIS REPLY, THE JUDGMENT MUST BE REVERSED, SUPPRESSED, I), OR THE JUDGMENT REVERSED AND A NEW TRIAL ORDERED (POINTS II, III, and IV). HIS STATEMENT AND A NEW TRIAL ORDERED (POINT Respectfully submitted, LYNN W. L. FAHEY Attorney for the Defendant- Appellant Appellate Advocates 111 John Street - 9th Floor New York, New York 10038 DE NICE POWELL Of Counsel July 28, 2017 29