People v. Bryant

71 A.D.2d 564, 418 N.Y.S.2d 621, 1979 N.Y. App. Div. LEXIS 12763

Opinions

Judgment,Supreme Court, Bronx County, rendered October 25, 1976, affirmed. To the extent that the facts are set forth in the dissent, they are fairly stated and need not be repeated here. This is not to say that we accept the conclusions drawn by our dissenting brother, particularly to the effect that defendant’s attendance at the police station was not willing on his part and that his eventual confession was coerced by means of involuntary police detention. At the very beginning, a "straw man” ("The police conceded that had Bryant sought to leave during the questioning, he would not have been permitted to do so.”) should be identified and eliminated. There is not the slightest indication in the evidence that this attitude on the part of the police was ever conveyed to defendant. We do not have any indication at all that defendant had any idea that he was not free to leave at any time. His presence at the station house was completely voluntary; he said so himself: "I put on the clothes and went to the police station willingly.” Again: "When I went to the police station, I went willingly, not knowing of such a crime, not knowing that any crime had happened but I went willingly”. He spoke to the police voluntarily: "I told him [a policeman] I didn’t commit such a crime so I’m willing to speak.” The fact that his first statements concerning involvement in the crime were a mixture of admission and disclaimer bears not at all on the voluntary nature of his participation in the investigation. His mother, testifying in a manner that may be fairly characterized as noncommittal, capable of different interpretations, said nothing capable of being construed as an indication of involuntariness on defendant’s part. There is an implication that there was something sinister and coercive in what the police did in checking out each of the statements made by defendant concerning his activities on the critical evening. Taxed by the police with having told untruths, defendant blithely uttered another falsehood which did not stand up under investigation. In this connection, consideration of a footnote in the dissent takes us along an interesting path: "Bryant did not testify at the suppression hearing. He did testify at trial, however, and stated that he went to the precinct voluntarily. This was not evidence before the suppression court, but more importantly would have been the only plausible trial posture. Had he testified that he went to the police station against his will, a natural conclusion for the jury to draw would be that his refusal to accompany the police meant that he had something to hide.” It is to be observed that defendant did not participate personally in the suppression hearing. Nor, although he had every opportunity to litigate, both at the hearing and at trial, the question of his mental capacity and whether his participation and statements were voluntary, this was not done. All of this is explained by the quoted footnote—it may be said, as sheer speculation—as a matter of trial tactics, repudiated entirely on this appeal. It is not any more speculative to consider that the jury might have concluded that defendant faced the police interrogation as a challenge of his ability to talk his way out of the difficulty, and that this was obvious to the jury. And his fate, i.e., that he ended by entangling himself by demonstrable and demonstrated lies is quite often the fate of most "smart alecs”. The complete and utter failure of his lying statements, and the necessity for their investigation were brought about by defendant’s own choice and not the result of a plot initiated by the police. Indeed, this appears to have been the prime cause of the length of time that defendant spent at the police station. Defendant is not to be heard to argue for the first time on this appeal that his appearance at the station house was other than voluntary. This is more than a matter of a finding from conflicting evidence; this was a flat and unequivocal admission in his own words by a party to this action, and not subject to speculation at this juncture. There was not probable cause for arrest at the beginning of interrogation, but defendant, his ploy having failed, and faced with the knowledge that the police had located a witness who had seen him following the victim, whom he had denied knowing, made a full inculpatory statement. At that point, it became proper for the first time to place him under formal arrest. Dunaway v New York (442 US 200) is cited, in our view, inappropriately for the proposition that this defendant’s interrogation was improper. Obviously, such a conclusion must rest on a finding that it was custodial. We hold it was not. Concur—Markewich, Lupiano and Silverman, JJ.