PEOPLE v. OWENS (2000)

This is a death penalty case.   The District Attorney's office filed a Notice of Intent To Seek The Death Penalty pursuant to CPL § 250.40 on January 24, 2000.

Defendant seeks to preclude any alleged oral statements due to the failure of the police to record electronically the Miranda warnings, and any waiver thereof, as well as any subsequent custodial interrogation.   Defendant relies on Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) where the Alaska Supreme Court held that the failure to electronically record a custodial interrogation while the suspect was in a place of detention violated the suspect's right of due process under that State's constitution.   Only one other state's highest court, the Minnesota Supreme Court, acting under its supervisory power, has adopted a recording requirement.  State v. Scales, 518 N.W.2d 587, 592 (Minn.1994).

The American Law Institute's Model Code of Pre-Arraignment Procedure and the Uniform Rules of Criminal Procedure require the electronic recording of custodial interviews.   See A.L.I. Model Code of Pre-Arraignment Procedure § 130.4(3) (1975);  Unif.R.Crim.P., rule 243(b), 10 U.L.A. 32 (Master ed. Supp.1992).   At least one state legislature has codified a similar recording requirement.   Texas Code Crim.Pro.Ann. Art. 38.22(3) (1999).

But in the fifteen years since the Stephan decision, the majority of other jurisdictions have declined to adopt a recording requirement.   See e.g., People v. Holt, 15 Cal.4th 619, 663, 63 Cal.Rptr.2d 782, 937 P.2d 213, 242, cert. denied, 522 U.S. 1017, 118 S.Ct. 606, 139 L.Ed.2d 493 (1997) (capital case);  State v. Smith, 80 Ohio St.3d 89, 106, 684 N.E.2d 668, 686 (1997) (capital case);  Commonwealth v. Diaz, 422 Mass. 269, 272-73, 661 N.E.2d 1326, 1328-29 (1996);  State v. Rhoades, 120 Idaho 795, 804-05, 820 P.2d 665, 674-75 (1991), cert. denied, 504 U.S. 987, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992) (capital case);  Jimenez v. State, 105 Nev. 337, 341, 775 P.2d 694, 697 (1989) (capital case).

 This Court finds federal due process does not mandate a recording requirement.   Accord Stephan v. Alaska, supra at 1160 (custodial interrogations need not be recorded to satisfy the due process requirements of the federal constitution, because a recording does not meet the standard of constitutional materiality enunciated by the United States Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984));  People v. Holt, supra.;  State v. Smith, supra.   Nor does our State constitution extend beyond the parameters of federal constitutional guarantees even in the context of a capital case.   Accord People v. Johnson, unpublished, p. 30-33 (Albany Cty.Ct. [Breslin, J.] (July 27, 1998));  People v. Van Dyne, unpublished, p. 2 (Mon.Cty.Ct. [Marks, J.] (May 28, 1998));  People v. Mateo, slip opn., at 3, 175 Misc.2d 192, 664 N.Y.S.2d 981 (Mon.Cty.Ct.1997) (edited for publication).

 In the absence of statutory or constitutional authority this Court declines to prescribe a common law recording requirement.   However, at trial Defendant is entitled to pursue the police failure to record any Miranda warnings and subsequent statements, including the availability of recording equipment, since it relates to the voluntariness of Defendant's statements.   See People v. Johnson, supra at 32-33.

Defendant's motion is denied.

DAVID D. EGAN, J.