PEOPLE v. MITCHELL (2004)

The Court makes the following findings of fact and conclusions of law after an evidentiary hearing held on March 23, 24, and April 7, 14, 2004 on defendants' motions to suppress statements.   Sometime after the hearing defendant Curtis Babb withdrew his motion to suppress the statements he made to the detectives on June 22, 2002 in the 77th Precinct.   Therefore, I will not make findings and conclusions in his case, but I will make occasional references to him to complete the narrative.

The Peoples's witnesses, Detective Panichi and Detective Polacsek, were truthful but not completely reliable in many respects because their hurried investigation on the night of June 21 and early morning of June 22, 2002 seemed superficial and their record keeping and reporting inadequate.   Given that situation, their frequent memory lapses were probably inevitable.

Police Officer Augustin (“Augustin”), on the other hand, called by the defense, was also truthful but I believe more reliable about her hospital interviews and she had a better memory than the detectives concerning the narrow part of the case in which she was involved.

Complaining witness Charmaine Babb (“Ms. Babb”) on June 21, 2002 was admitted to Kings County Hospital (“KCH”) with burns to her feet and, as far as the detectives understood, some undefined vascular problems in her legs, after being found alone in her wheelchair in a dazed, helpless and disheveled condition in a locked church located at 702 St. Marks Avenue in Brooklyn.   She had been missing for several days from the Park Terrace Rehabilitation Center, where she was a long-term resident following a stroke she suffered while giving birth a year or so earlier.

Sgt. Curtis Josephs, who was called to testify by defendant Junior Mitchell, was the Patrol Supervisor at the 77th Pct. for the 4 p.m. to midnight tour of duty on June 21, 2002.   He sent Augustin to KCH to investigate Ms. Babb's situation.   Augustin interviewed Ms. Babb and others at the hospital and reported back to Sgt. Josephs that Ms. Babb was seriously injured during a religious healing ritual.   The sergeant then referred the case to the detectives in the 77th squad and directed Augustin to resume patrol after she briefed the detectives who were coming to KCH. Augustin was called by defendant Junior Mitchell, the Shepherd of the church, to testify about details of her hospital interviews and the preparation of a UF-61 naming Junior Mitchell as “Wanted” in the assault 1st degree case involving Ms. Babb. She received and provided to the Court much more detail regarding the incident, including some allegations about what Curtis Babb did during the ceremony which are not relevant to these findings.   It was not clear how much of that information was relayed to the detectives that night.   They recalled very little.

The detectives went to KCH and conducted a short interview with Augustin, as well as with a health attendant from Park Terrace and with Ms. Babb herself.

At the hearing only sparse details of their interviews were given, mostly based on their notes and reports.   The detectives recalled seeing Ms. Babb's toes badly burned and her wincing with pain.   They learned that Ms. Babb went willingly to the church on or about June 9, 2002 for a healing ritual involving extended fasting and prayer conducted by Shepherd Junior Mitchell, assisted by his wife Desrein Mitchell, the Pastor of the church.   At some point Junior Mitchell burned Ms. Babb's feet with candle wax and fire and at another point he used a razor to cut an “x” on the bottom of her feet, letting out blood and water.   At yet another time Desrein Mitchell used a broom to hit her legs.   She also complained that she was denied necessary medical attention.

The detectives, accompanied by a number of other police officials and vehicles, went to the church in question that same night, June 21, 2002.   They were allowed upstairs to adjoining living quarters for Junior and Desrein Mitchell.   The detectives told the Mitchells that they needed to interview them that night at the precinct about a ceremony in the church during which Ms. Babb was burned.   The Mitchells were given a chance to get dressed in the next room.   They were not cuffed or formally arrested, but neither were they given other options, such as to be interviewed at their home, or the next morning or at some other more convenient time and place.   Here again, the detectives remembered virtually nothing that was not in their notes or reports.   For example, they could not say which other police officials or vehicles accompanied them, who answered the door, what, if any, specific conversation was engaged in, or which defendant rode in which police vehicle.   They all went to the 77th Pct. for the interrogations.   The one memory exception, which I credit, is that Detective Panichi recalled that Junior Mitchell on the way to the precinct asked him if he was under arrest and Panichi said “No.”

At the precinct Desrein and Junior Mitchell were put in separate rooms to be interrogated.   No Miranda warnings were given until much later.   During the approximate one hour separate sessions, each gave statements.   Notes were taken by the detectives and DD5's were prepared, but nothing was written, recorded or signed by the Mitchells themselves.¹  I believe the questioning was intended to elicit information and also took on a challenging or accusatory tone at times.

After these interviews and after conferring with his partner and probably supervisors, Detective Polacsek determined to make formal arrests of Junior and Desrein Mitchell and gave them Miranda warnings separately at about 3:45 a.m. and 3:46 a.m. respectively on June 22.   They each declined to make any further statements to the detectives or to an Assistant District Attorney on video.

None of the defendants testified at the hearing.   As previously noted, Junior Mitchell called Augustin and Sgt. Josephs to elicit more facts about the hospital interviews and the police action taken in response to information gained from their interviews.   The sergeant acknowledged authoring a report to the Chief of Patrol that night wherein he wrote that Junior Mitchell was “being held for investigation by Det. Polacsek.”   In addition to giving details not supplied by the detectives from Ms. Babb, Augustin testified that the Duty Captain that night asked her if she wanted to accompany the detectives to the church to make an arrest.   While I accept the fact that she was told this, I also find that the detectives remained in charge of this investigation and were not ordered to make formal arrests by any supervisors, at least not before they interviewed those subjects from the church.   In addition, I find that although the detectives believed they had enough information, amounting in their view to probable cause, to make arrests of the Mitchells that night, they did not begin the formal arrest process until after the questioning sessions which are the subject of this hearing.

CONCLUSIONS OF LAW

 The People must prove voluntariness of defendants' statements beyond a reasonable doubt.  People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965);  People v. Holland, 48 N.Y.2d 861, 424 N.Y.S.2d 351, 400 N.E.2d 293 (1979).   This burden includes the prosecution's duty to prove beyond a reasonable doubt that defendants were given and knowingly and voluntarily waived their Miranda rights, if they were subjected to custodial interrogation.  People v. Rosa, 65 N.Y.2d 380, 492 N.Y.S.2d 542, 482 N.E.2d 21 (1985);  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

However, regarding the threshold issue of custody, i.e., whether defendants were in custody for purposes of requiring Miranda warnings before their interviews or interrogations, the case law is by no means uniform.   Some courts have held that the defense has the ultimate burden of persuasion by a preponderance of evidence that the defendants were in custody.   See, Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 710.60, at 281 (1995), citing to U.S. v. Charles, 738 F.2d 686 (5th Cir.1984).   See also, People v. Morales, N.Y.L.J., Dec. 8, 1997, at 30, col. 4 (Sup. Ct., N.Y. County, 1997), affd. 281 A.D.2d 182, 721 N.Y.S.2d 526 (1st Dept. 2001), lv. denied, 96 N.Y.2d 922, 732 N.Y.S.2d 639, 758 N.E.2d 665 (2001);  People v. Payne, 1 Misc.3d 909(A), 2004 WL 94059 (Sup. Ct., Kings County, 2004) and cases cited therein;  People v. Holder, N.Y.L.J., Sept. 20, 1991, at 27, col. 1 (Sup. Ct., Kings County, 1991).

Other courts have followed a different rule and placed the burden on the prosecutor to disprove custody, either beyond a reasonable doubt [see People v. Tirado, 137 A.D.2d 928, 525 N.Y.S.2d 352 (3rd Dept. 1988), lv. denied 71 N.Y.2d 974, 529 N.Y.S.2d 85, 524 N.E.2d 439 (1988);  People v. Walsh, 1996 WL 639850 (Sup. Ct., N.Y. County, 1996);  see also 1 CJI (N.Y.) 11.02 at 661-665 (1983) ] or by some undefined or lesser standard [see People v. Flores, N.Y.L.J., Oct. 19, 1981, at 5, col. 1 (App. Term.);  People v. Knight, N.Y.L.J., Dec. 15, 1992, at 22, col. 3 (Sup. Ct., N.Y. County 1992) ].

The ambiguity in the case law regarding this burden of proof is further illustrated by the First Department's introductory language in its affirmance of Morales, supra:  “Regardless of which party is deemed to have the burden of proof on the issue of custodial interrogation ․” Moreover, this issue has not been definitively decided by the Court of Appeals.   See, People v. Alls, 83 N.Y.2d 94, 113, 608 N.Y.S.2d 139, 629 N.E.2d 1018 (1993) [dissenting opinion], cert. denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474 (1994).

Defendant Junior Mitchell's post-hearing brief urges this Court to follow a different line of cases, dealing with the People's burden of proving consent:

People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575 (1976);  People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441, 462 N.E.2d 1159 (1984) and People v. Gonzalez, 80 N.Y.2d 883, 587 N.Y.S.2d 607, 600 N.E.2d 238 (1992).   Those cases each require the prosecution to bear the heavy burden of establishing consent in different factual and legal contexts, when the prosecution claims that consent was given and it forms an essential part of the prosecution's case for a waiver of a constitutional right.   See, 7 N.Y. Practice Series, § 10.20 Suppression hearings-Burden of proof, n. 481.

 In the final analysis it appears to me that People v. Gonzalez, 80 N.Y.2d 883, 587 N.Y.S.2d 607, 600 N.E.2d 238, is controlling on the question of which side has the burden of proving custody or lack of it in cases such as ours, where the issue turns on whether consent was given to go to the precinct for questioning.   The prosecution bears that burden by clear and convincing evidence.   While it is tempting to reconcile the line of cases referred to previously which place the burden on the defense, by ruling that the prosecution's burden is merely one of going forward, I cannot do so without disregarding the Court of Appeals' reliance on People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 and People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159.   See, People v. Gonzalez, 80 N.Y.2d 883, 885, 587 N.Y.S.2d 607, 600 N.E.2d 238.

Having resolved the burden of proof issue, I turn now to the issue of custody itself.   Courts remain unanimous that the rule in People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 (1969), cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 (1970), still governs, even in cases where the custody issue is chiefly determined by whether consent by the subject to go the police station was given.  “The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position.” (citations omitted).  Ibid. See, People v. Diaz, 84 N.Y.2d 839, 616 N.Y.S.2d 900, 640 N.E.2d 1134 (1994);  People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280 (1990), habeas corpus denied 1999 WL 118124 (S.D.N.Y.);  People v. Parsad, 243 A.D.2d 510, 662 N.Y.S.2d 835 (2d Dept. 1997), lv. denied 91 N.Y.2d 944, 671 N.Y.S.2d 724, 694 N.E.2d 893 (1998);  People v. Delfino, 234 A.D.2d 382, 651 N.Y.S.2d 553 (2d Dept. 1996), lv. denied 89 N.Y.2d 1034, 659 N.Y.S.2d 865, 681 N.E.2d 1312 (1997), People v. Nolcox, 190 A.D.2d 824, 593 N.Y.S.2d 835 (2d Dept. 1993), lv. denied 81 N.Y.2d 1017, 600 N.Y.S.2d 205, 616 N.E.2d 862 (1993);  People v. Smedman, 184 A.D.2d 600, 584 N.Y.S.2d 627 (2d Dept. 1992);  People v. Forbes, 182 A.D.2d 829, 583 N.Y.S.2d 14 (2d Dept. 1992), lv. denied 80 N.Y.2d 895, 587 N.Y.S.2d 926, 600 N.E.2d 653 (1992);  People v. Bailey, 140 A.D.2d 356, 527 N.Y.S.2d 845 (2d Dept. 1988);  People v. Johnson, 91 A.D.2d 327, 458 N.Y.S.2d 775 (4th Dept. 1983), affd. 61 N.Y.2d 932, 474 N.Y.S.2d 967, 463 N.E.2d 368 (1984).

Mitchell et al. is virtually indistinguishable from People v. Gonzalez, 80 N.Y.2d 883, 587 N.Y.S.2d 607, 600 N.E.2d 238.   True, the prosecution in Gonzalez, supra, presented no firsthand evidence of the circumstances under which defendant was brought to the precinct and the defendant's wife testified at the hearing to the threat of force expressed by the detectives.   In contrast, the hearing record in Mitchell et al. included the testimony of two detectives who went to the church to pick up the Mitchells.   Upon further scrutiny, however, this appears to be a difference without distinction.   Aside from the fact that a number of police officials were present at the church that night, at least one of whom was reliably quoted at the hearing as having said that an arrest was about to be made, the detectives remembered almost nothing about the circumstances of encountering the Mitchells and bringing them to the precinct for questioning that night.   This is hardly the way to carry a heavy burden.   The one exception, that Junior Mitchell asked in the police car if he was under arrest and was told “No”, cuts both ways.   It demonstrates not only that the subject of arrest was on Junior Mitchell's mind, but also that the circumstances he found himself in with the police naturally led him to make that inquiry and feel that pressure.   Nor does the negative answer he was given change my conclusion.   The formal arrest was not yet effected and the detectives intended to postpone that process until after the interrogations, in an obvious effort to facilitate the interrogations themselves and, in their view, to obviate the need for Miranda warnings.   Formal arrest necessarily includes custody, but custody does not require formal arrest.

 Assume that reasonable persons in the place of the Mitchells, innocent of any crime, but probably aware that Ms. Babb had suffered injury, possibly serious, during or after (but in some way related to) an extended religious healing ritual they conducted in their church, were visited by a number of police officials and vehicles in the middle of the night, roused from sleep and told they were needed for questioning immediately at the precinct.   Such reasonable and innocent persons may very well believe themselves to be in custody on their way to and at the precinct, i.e., that they had no choice but to go with the police, depending on what the police said to them and how the police conducted themselves that night, especially at the Mitchell's home.   The absence of clear proof by the prosecution regarding those circumstances renders the record ambiguous on the critical issue of their voluntary cooperation with the police that night.   Given my ruling on the burden of proof, that ambiguity must be resolved against the People.

I therefore conclude that the People have not carried their heavy burden of proof regarding the Mitchell defendants' consent to be interrogated at the precinct (People v. Yukl, supra ), and that, on this record, their statements were the product of custodial interrogation without the required Miranda warnings.   Accordingly, the motions to suppress their statements are granted, and the statements are suppressed.   They may, however, be introduced for impeachment purposes, if appropriate, on cross-examination or on rebuttal, since they were not classically coerced.   See, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

IT IS SO ORDERED.

FOOTNOTES

1.   Curtis Babb, husband of Ms. Babb, arrived at the precinct some time after the Mitchells.   The detectives cannot explain how or why he got there.   He was separately interviewed after the Mitchells and allowed to leave the precinct.   Curtis Babb was not arrested and charged until approximately two months later.

JOSEPH KEVIN McKAY, J.