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PEOPLE STATE NEW YORK v. WALLACE BAKER (11/27/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43683 <http://www.versuslaw.com>; 244 N.E.2d 232; 23 N.Y.2d 307 decided: November 27, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.WALLACE BAKER, RONALD FELDER, WILLIAM CRAIG, ROBERT RICE, DANIEL HAMM AND WALTER THOMAS, APPELLANTS People v. Baker, 28 A.D.2d 24, reversed. Counsel Alfred I. Rosner and Martin B. Rosner for Wallace Baker, appellant. John E. Silverberg, Conrad J. Lynn, William M. Kunstler, Abraham H. Brodsky and Raphael P. Koenig for Ronald Felder and William Craig, appellants. Counsel Gussie Kleiman and Alfred Norick for Robert Rice, appellant. Counsel Victor J. Herwitz and Myron J. Greene for Daniel Hamm, appellant. Counsel Herbert J. Adlerberg, Irving Mendelson and Arthur C. Muhlstock for Walter Thomas, appellant. Counsel Frank S. Hogan, District Attorney (Alan F. Scribner and Michael Juviler of counsel), for respondent. Opinion by Judge Keating. All concur except Judge Scileppi who dissents in part and votes to affirm as to all defendants except defendant Baker, and Judge Bergan, who dissents and votes to affirm as to all defendants in a separate opinion in which Judge Jasen concurs and in which Judge Scileppi concurs in part. Author: Keating


People v. Baker, Opinion by Judge Keating. All concur except Judge Scileppi who dissents in part and votes to affirm as to all defendants except defendant Baker, and Judge Bergan, who dissents and votes to affirm as to all defendants in a separate opinion in which Judge Jasen concurs and in which Judge Scileppi concurs in part.

Author: Keating

 Frank and Margit Sugar arrived in the United States in December, 1956 after having made their way to safety in the West following the collapse of the Hungarian Revolution. In 1960 they began operating a small, retail clothing shop in Manhattan.

Late in the afternoon of Wednesday, April 29, 1964, Frank and Margit were sitting at a desk toward the rear of their store. The store was quiet. Three teen-agers entered the store, moved toward the back, asking "Where's the 40 suits?" His suspicions aroused, Mr. Sugar quietly told his wife to walk toward the door. "Something is wrong," he whispered to her. As they approached the door, Mr. Sugar in front, his wife behind, the door opened again and three more boys came in. They pushed Mr. Sugar back and began attacking him and his wife with knives. He heard his wife cry out: "Somebody kill me." Mr. Sugar turned. Seeing his wife falling to the floor, he ran to help her. He dragged her to the wall and propped her up against it. Margit's clothing was stained with blood; she was pale and silent. As Mr. Sugar knelt beside his wife, one of the six boys came at him with a knife. Mr. Sugar was able to knock the knife out of the attacker's hand, and it dropped to the floor.

The six fled. Mr. Sugar ran next door to a drugstore to get help. He then ran back to the shop to his wife's side. Moments later, the police and ambulance arrived. Margit was fatally wounded. Mr. Sugar had received seven severe knife wounds. An emergency operation, however, saved his life.

The police started their investigation. Robert Barnes, then age 18, was brought in for questioning. On the morning of the 30th, he was questioned by Detective Gonzales. The interrogation was not fruitful, and Barnes was placed in the precinct's "bullpen" with nine others. After about two hours had passed, Barnes mentioned to one of his cellmates that the police did not know who committed the murder and "would probably never find out." A half hour later Detective Gonzales called Barnes out of the prison pen and repeated to Barnes the words of his earlier conversation. Confronted with this incriminating statement, Barnes then made a full confession, and all the details of this brutal murder became known.

A little more than an hour before the murder, Barnes met the defendant Thomas, nicknamed "Turk", and together they went to meet defendants Baker, Craig, Hamm and Rice. Barnes knew them all as they had seen each other as a group quite often.

The boys went into a hallway of a building where they, with defendant Baker taking the lead, began to plan a robbery of a clothing store. Barnes recognized the store from Baker's description of it. Around this time the sixth defendant Felder joined the group. As Baker outlined his plan, Barnes, Craig and Thomas would walk into the store first and Thomas would ask for a size 40 short suit. Five seconds later, Baker and Rice would walk into the store. The storeowner and his wife would be "doused". Baker would stab the man and Rice the woman. In the meantime the first three would be filling shopping bags with suits. Felder would follow Baker and Rice into the store, close the door and pull down the shades. All six would now fill the shopping bags so that there would be "a shopping bag apiece". While Baker was talking, Barnes noticed that both Baker and Rice were carrying knives.

After the first conversation, the group then went to Thomas' house where they sat in the kitchen while, this time, Rice went over the details of the plan. Hamm, who refused to go into the store, was to act as a lookout and would check out the store to see if there were any customers inside. It was agreed that, after the crime, they would all meet at Rice's house. Because Barnes was the fastest runner, he was given the key to Rice's apartment. He would leave the door open for the others. The plan agreed upon, the seven left Thomas' apartment and set out to carry out the robbery and the double murder.

The time was now about 4:50 p.m. At this point, one of those strange coincidences which so often attend these crimes occurred. On their way to the store, they passed Barnes' home. Barnes' father saw him and called him inside to discuss with the landlady an argument which Barnes had had that morning with the superintendent. This discussion lasted until about 5:30 p.m. when his father let him go on his way. He headed for Rice's house to return the key and to get his share of the loot to which he still felt entitled. His path took him past the store. He saw police outside and, when he looked in, he saw two puddles of blood on the floor. Rice lived some two blocks away. When Barnes arrived he found Baker, Craig, Rice and Thomas. They sat in the living room and talked, while Rice's grandmother was working in the kitchen.

Rice told Barnes that there was no loot to split as they had run out of the store. Felder and Hamm had been at the apartment but had already left, apparently intending to flee. Rice demonstrated how he had stabbed the woman. After some further talk, the boys left, departing two by two to avoid arousing suspicion.

Defendants were thereafter arrested. At a joint trial all six of the defendants were found guilty of first degree murder, attempted murder in the first degree and attempted robbery in the first degree. They were each sentenced to life imprisonment, 12 1/2 to 25 years, and 7 1/2 to 15 years on each of the charges respectively, the sentences to run concurrently. The Appellate Division unanimously affirmed the convictions of all of the defendants, with the exception of defendant Baker whose conviction was affirmed by a closely divided court (28 A.D.2d 24).

Defendants stand convicted of a particularly vicious crime. That there is ample evidence to establish the guilt of all six beyond a reasonable doubt (only three even bother to raise this issue) is clear from the record. We are, however, constrained by principle and precedent to reverse the judgments below and order new trials as to all of the defendants because of errors committed at the trial, which deprived the defendants of a fair trial and resulted in a constitutionally defective trial.

The prime error which compels a reversal and a new trial as to all the defendants is the implication of the defendants in the crime by the confessions and statements of some of their co-defendants.

During questioning by the prosecutor, Barnes and Detective Gonzales testified that some of the defendants made statements inculpating their co-defendants. Thus, on one occasion, the detective implicated -- via defendant Hamm -- each of the other defendants at least twice. Another instance occurred somewhat earlier in the trial during the testimony of Barnes when Barnes implicated Felder through statements made by Rice and Thomas. However, neither Hamm, nor Rice nor Thomas testified. Other examples of this improper admission of statements by non-testifying defendants are to be found in the record. The admission of these statements without any attempt to redact them violated the defendants' constitutional right to confront their accusers (Bruton v. United States, 391 U.S. 123, 134, n. 10).

The error cannot be ignored upon the ground that no proper objection was made (see O'Connor v. Ohio, 385 U.S. 92) since in this pre- Bruton case their admission under limiting instructions was proper. (People v. Vitagliano, 15 N.Y.2d 360; see Roberts v. Russell, 392 U.S. 293 [holding Bruton retroactive].) Nor can the error be disregarded as non-prejudicial. (See People v. Boone, 22 N.Y.2d 476; People v. Adams, 21 N.Y.2d 397.) While it is true that the need to avoid testimony in violation of Bruton offers difficulties for the trial court, not present when it is dealing with written statements, the matter here in question cannot be put aside as minor or inadvertent where Detective Gonzales' testimony was given in order to bolster Barnes after a thorough cross-examination.

To compound the problem, the prosecutor urged the jury to consider Hamm's statement against all the defendants. This vitiated any instructions by the trial court (People v. Adams, 21 N.Y.2d 397, 401; People v. Lombard, 4 A.D.2d 666). Not only did the trial court not warn the jury against the impropriety of this line of argument, in effect it overruled the objection. Other improper use of the confessions and oral statements appears throughout the summation.

There is also presented the question of the adequacy of the redaction of the written statements obtained from defendants Baker, Hamm and Rice. Although X's were substituted in Baker's and Hamm's question and answer statements, and in Rice's confession, each of the admissions went into great detail and each parallels Barnes' account of the crime. From this and Hamm's oral statement, it was a simple matter for the jury to substitute for the "X's" the names of the appropriate defendants. None of these statements or confessions were and none can be effectively redacted. (People v. Jackson, 22 N.Y.2d 446; People v. Burrelle, 21 N.Y.2d 265; People v. La Belle, 18 N.Y.2d 405; see, also, United States v. Bozza, 365 F. 2d 206, 215, quoted in Bruton, 391 U.S., p. 130, n. 4).

These errors compel a new trial for the three confessing defendants as well as for the nonconfessing defendants (People v. Burrelle, supra). It might well have been the existence of the other confessions which led the jury to conclude that each of the confessions was both truthful and voluntary and the defendants' guilt proven.

We turn then to the only other error which mandates a reversal here, albeit with respect to the defendant Baker only. Baker's confession was obtained after he had been surrendered to the police by his attorney for the purposes of arraignment. It is uncontroverted that the attorney had made it clear that he wished his client to make no statement and to be present at any questioning of his client. The statements taken by the police and the Assistant District Attorney after Baker's attorney had left the police station ...


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