Background Facts: Defendant was interrogated by North Carolina detectives about a New York murder for which the defendant was subsequently charged.  At the suppression hearing before trial, the North Carolina detective testified that the defendant told him, in an initial, insufficiently warned, oral statement, that he wanted to take the blame for his half brother.  After a 45-minute break, which was preceded by Miranda warnings from a North Carolina form, and followed by Miranda warnings from an NYPD form, the defendant said that he shot at the victim, fled, and that his half-brother had not shot or harmed the victim.  The detective wrote this down at the defendant’s request.  Supreme court suppressed both statements and the prosecution took an interlocutory appeal.  The Appellate Division reversed, finding that the second (written) statement was attenuated form the first (oral) statement).  The Appellate Division relied in part on the fact that defendant made only a non-inculpatory statement before proper warnings and was subjected to no significant interrogation before the administration of proper Miranda warnings.  

 

At trial, the detective testified differently than at the suppression hearing, now saying that he spoke at length with the defendant in the break between the two statements, and that the defendant then admitted that he shot at the victim, which was then memorialized after the proper warnings were issued.  Defense counsel did not move to reopen the hearing, instead using the first statement to discredit the second.   After his conviction for intentional murder, the defendant brought a pro se 440.10 motion, alleging IAC. Trial counsel provided an affidavit stating that he did not move to reopen the hearing because he believed there was little chance of either reopening the hearing or winning a reopened hearing, and that his strategy was to use the first statement to discredit the inculpatory one.  Supreme court denied the motion and the Appellate Division affirmed.

 

Held: Counsel was not ineffective.  It was not clear that the hearing would have been reopened – a discretionary determination by the trial court — and it was “highly unlikely” that the second, post-break, properly warned statement would have been suppressed.  The totality of the circumstances of the interrogation (detailed by the majority)  indicated that the “post-break statement was voluntary and attenuated from the pre-break statement.” 

 

CAL Observes:

The counter-narratives between the majority and dissent (Stein and Fahey) are interesting.  Regarding attenuation, the majority details several factors, including the administration of “some form of Miranda warnings at the start of the interrogation, the break between the two statements, the issuance of written Miranda warnings before and after the break, and defendant’s prior experience speaking to the police.  On basically the same facts, the dissenters, noting that he had “only” and “merely” a 45-minutes break and that the same detectives in the same location, were involved, stated that he had a “strong argument that his written statement was not attenuated from his suppressible oral statements.”  For litigants, this would counsel against giving even an inch on an attenuation analysis, as it is very much in the eyes of the beholder.  As for counsel’s strategy, the dissenters saw no downside to moving to reopen, since, if successful, the prosecution could not have gone forward without the inculpatory statement and at worst, the defense would be in the same position it was in.