Under New York law, a defendant who is represented by counsel on a criminal matter may, under certain circumstances, be questioned by law enforcement about a different, unrepresented crime without violating a defendant’s right to counsel. In People v. Henry (Ct. App. 6/12/2018) (Wilson, J.) (7-0), the Court of Appeals, reversing the Appellate Division, held that police did not violate Mr. Henry’s right to counsel when they interrogated him about a murder charge for which he was not represented by counsel. (Full disclosure: counsel for the appellant in this case is an adjunct professor at St. John’s Law in our advocacy program.)
The case stemmed from a robbery at a tattoo parlor and a shooting at a gas station of a 19-year-old man in which the same getaway vehicle, a black Hyundai Sonata with dark tinted windows, was used at the scene of the crimes. Five days later, Mr. Henry, driving a black Hyundai Sonata with dark tinted windows, was pulled over for traffic infractions and arrested for marijuana possession. Mr. Henry was assigned counsel on the marijuana charges. Upon an inventory search of Mr. Henry’s vehicle, police found evidence in his car linking him to the robbery of the tattoo parlor. Three days after his release, Mr. Henry was again pulled over for traffic infractions, but this time was arrested and brought in for interrogation in connection to the robbery and murder. Mr. Henry was read his Miranda rights, which he waived, and subsequently admitted to being the driver of the vehicle involved in the robbery and murder. A grand jury returned an indictment charging Mr. Henry with multiple counts of Robbery 1º, CPW 2º, Criminal Possession of Stolen Property 5º, Murder 2º, and Criminal Possession of Marijuana 5º.
Prior to trial, Mr. Henry moved to suppress his statements regarding the robbery and murder as having been obtained in violation of his right to counsel, which had attached as to the marijuana charge. The Supreme Court agreed in part. The court suppressed his statements regarding the robbery, reasoning that the robbery and marijuana charges were related under the Cohen test, but the court refused to suppress Mr. Henry’s statements regarding the murder stating that the murder and marijuana charges were completely unrelated. Mr. Henry was eventually convicted by a jury of Murder 2º but acquitted of the Robbery charges.
In People v Cohen, the Court of Appeals articulated the rule of how a suspect’s right to counsel is violated when law enforcement question the person on an unrepresented crime.
There are two categories of cases in which police questioning on an unrepresented crime may violate a defendant’s right to counsel: (1) where the two matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel and (2) where, although the matters are less intimately connected. . . the police [are] aware that the defendant was actually represented by an attorney in one of the matters, and the interrogation actually entail[s] an infringement of the suspect’s State constitutional right to counsel by impermissible questioning on the represented crime.
On appeal, the Appellate Division applied a different analysis. The Appellate Division did not analyze whether the murder was related to the marijuana charge. Instead, it focused on the relationship between the murder and the robbery and held that the statements for the murder should have been suppressed as well.
But the Court of Appeals framed the issue differently, stating that the Appellate Division wrongly applied the Cohen analysis. The Appellate Division should have considered whether the murder charge was sufficiently related to the marijuana charge, not the robbery. When framing the issue this way, the Court stated that the analysis doesn’t implicate Cohen’s second prong and only the first prong must be used to determine if the murder and marijuana crimes were so interwoven that by questioning Mr. Henry on the murder was it likely to elicit incriminating responses regarding the marijuana charge. On analysis of the record, the only fact linking the marijuana charge to the murder charge was Mr. Henry’s vehicle, the black Hyundai Sonata. The court held this was not enough to link the two crimes:
Similarly, here, the mere fact that a black Sonata was used in the commission of the murder and was also the vehicle Mr. Henry was driving when the police discovered marijuana does not make the murder and marijuana charges “so closely related transactionally, or in space or time, that questioning on the [murder charge] would all but inevitably elicit incriminating responses regarding the [marijuana charge] in which there had been an entry of counsel” (Cohen, 90 NY2d at 638). Questioning about the murder would not have implicated Mr. Henry’s marijuana charge at all.
In addition, CPL § 470.15, which permits an appellate court to review only those portions of a judgment that were adverse to the appellant, did not bind the Appellate Division and prevent it from reviewing the suppression of the statement on the murder charge. Only the Suppression Court’s ruling on the robbery statement was barred, since that ruling was not adverse to the appellant.
Accordingly, the defendant’s right to counsel was not implicated when he was questioned about the murder, and the statement was lawfully admitted. (MK/LC)