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COURT OF APPEALS OF NEW YORK 1969.NY.41878 <>; 250 N.E.2d 36; 25 N.Y.2d 19 decided: June 5, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.GEORGE JOSEPH MCKIE, APPELLANT People v. McKie, 30 A.D.2d 561, affirmed. Counsel Lawrence W. McKeown for appellant. William Cahn, District Attorney (Henry P. De Vine of counsel), for respondent. Scileppi, J. Judges Bergan, Breitel and Jasen concur; Judge Burke dissents and votes to reverse in a separate opinion in which Chief Judge Fuld concurs. Author: Scileppi

People v. McKie, 30 A.D.2d 561, affirmed.

Scileppi, J. Judges Bergan, Breitel and Jasen concur; Judge Burke dissents and votes to reverse in a separate opinion in which Chief Judge Fuld concurs.

Author: Scileppi

 In the early morning hours of March 16, 1965 defendant George McKie reported to a neighborhood patrolman that he had discovered the body of Manella Morris in the second floor apartment of a two-family house located at 65 Walter Avenue, Inwood, Nassau County. The defendant had spent the night of March 15 in the first floor apartment which had been rented by his friend. He allegedly discovered the body when he went to the Morris apartment to use the toilet, since the toilet in the first floor apartment was not working.

Detective Matthew Bonora and other members of the homicide squad soon arrived at the scene of the crime and went upstairs to view the body. The face and head of the deceased were completely obscured; the head was covered with a blanket and rope was tied securely around the neck. In the course of questioning McKie outside the house, Detective Bonora asked him what he thought the police might do with respect to this serious situation. According to the detective, the defendant replied that: "We are going to have to stop whoever is going around hitting these people in the head." At this point no one had seen the victim's head, and they all thought that death had been caused by strangulation. Detective Bonora and Dr. Lukash, the medical examiner, immediately went upstairs and cut the ropes around the neck of the deceased. Upon removing the blanket, it was revealed that it was not a strangulation but that the deceased had died from a fractured skull. The defendant naturally became the prime suspect. Concededly, defendant was taken to police headquarters and interrogated extensively about his connection with the homicide. The interrogation proved fruitless, for he neither confessed nor made a single damaging admission.

Shortly thereafter, however, as a result of evidence obtained during the over-all investigation, the defendant was arrested and charged with several unrelated misdemeanors (gambling and sale of alcoholic beverages without a license). The District Court Judge assigned Patrick Adams, Esq., to represent defendant on the misdemeanor charges. Defendant pleaded guilty to one of the charges in satisfaction of all and received a jail sentence of six months which he served.

During all this time Detective Bonora and others continued the investigation of the Morris homicide but were unable to uncover any evidence to link McKie with the crime. Following McKie's release from jail on the misdemeanor charges, Detective Bonora approached him on many occasions to question him about the homicide. This caused McKie to get in touch with Adams, the attorney who had represented him earlier. Adams told Detective Bonora not to examine or talk to McKie. The Huntley hearing minutes proved, and it is not disputed by the People, that Adams continued to represent McKie for all purposes including the investigation of the homicide. As late as April 21, 1966, when Detective Bonora visited McKie's apartment, Adams told him over the telephone: "I told you once, I told you twice, I told you many times not to examine or not to talk to McKie."

About one month later, on May 18, 1966, Detective Bonora, Detective Oliva and Patrolman Monroe, who never ceased in their efforts to unravel the truth and build their case against their prime suspect, set out to find McKie and again question him. Detective Bonora testified that they spotted McKie on the street and followed him in their car. McKie entered a small building and the officers parked at the curb. Patrolman Monroe got out of the car and went into an apartment house near the building that McKie entered, in order to investigate a report of a prowler. When McKie came out he approached the car, leaned in the window and said to Detective Bonora, "It's not going to work, Matt. When are you guys going to stop bugging me?" At that point Patrolman Monroe came out of the building and McKie began an altercation with him, shouting and yelling. As the argument became heated McKie said to Monroe, "You can be killed too", and Monroe replied, "You're not dealing with any little old lady now." Observing the intensity of this verbal duel, Bonora and Oliva got out of the car and Bonora said to McKie, "You seem to be so brave now; you weren't so brave when you killed that little old lady" to which McKie replied, "Sure I did it, but you guys can't prove it."

As a result of this statement, McKie was arrested and charged with the murder of Mrs. Morris.

At a Huntley hearing held prior to the trial, McKie's statement -- made in the course of the argument with the police -- was found to be voluntary. Accordingly, at the trial, the prosecutor was permitted, over objection, to ask the arresting officers about the events of May 18, 1966 and to recall what the defendant had said at that time.

On this appeal McKie argues that the introduction of this testimony constituted reversible error because his statement was obtained in violation of the Sixth Amendment right to counsel. Primary reliance is placed upon the following language contained in People v. Arthur (22 N.Y.2d 325, 329): "Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel (People v. Vella, 21 N.Y.2d 249). There is no requirement that the attorney or the defendant request the police to respect this right of the defendant."

In our opinion defendant's reliance upon the Arthur case is misplaced. The language of Arthur, the facts upon which it was decided and the cases relied upon in the opinion make quite clear -- even upon a cursory reading -- that the rule laid down in that case is operative only when the police have taken an accused into custody or deprived him of his freedom of action in any significant way (see Miranda v. Arizona, 384 U.S. 436).

In order to fully understand the rule of Arthur, it is instructive to examine the nature of the right to counsel. The language of the Federal Constitution guarantees the right to counsel in any criminal prosecution, and our own State Constitution guarantees the right to counsel in any trial in any court. Through judicial interpretation this fundamental right to counsel had been expanded so that it applies not only at the trial, where the need for counsel is most obvious, but "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected" (Mempa v. Rhay, 389 U.S. 128, 134; emphasis added). Almost a decade ago this court held that an arraignment or indictment marks the beginning of the criminal proceeding against the accused. It is the commencement of the judicial stage during which the accused has a constitutional right to counsel (People v. Meyer, 11 N.Y.2d 162; People v. Waterman, 9 N.Y.2d 561; People v. Di Biasi, 7 N.Y.2d 544). The reason for expanding the right to counsel to the postarraignment or indictment period was best explained in People v. Waterman (supra, at p. 566): "The People would manifestly not be permitted at the trial to call the defendant to the witness stand to establish their case through his testimony * * * By the same token, they may not circumvent the defendant's privilege against self incrimination by introducing into evidence inculpatory statements obtained from him (following indictment [or arraignment]) at a private examination prior to the trial".

In other words, in order to protect the accused's Fifth Amendment privilege against self incrimination, the Sixth Amendment right to counsel had to attach during the pretrial period after the judicial proceeding had commenced either by indictment or arraignment.

Perhaps the most significant case in this area, however, is People v. Donovan (13 N.Y.2d 148). For it is Donovan which recognized the right to counsel during detention even though a defendant had not been indicted or arraigned. Indeed, it may fairly be said that Donovan is the seed from which sprang the Supreme Court's decisions in Escobedo v. Illinois (378 U.S. 479) and Miranda v. Arizona (supra). In Donovan the defendant was arrested, taken to a police station and was there interrogated by the police and a prosecutor. Donovan made two confessions -- one orally and the other in writing. The written confession was obtained after the police had refused to allow an attorney, retained by Donovan's family for him while he was in custody, to see or speak with him. In holding that it was reversible error to admit the written confession into evidence at Donovan's trial, we said: "we are of the opinion that, quite apart from the Due Process Clause of the Fourteenth Amendment, this State's constitutional and statutory provisions pertaining to the privilege against self incrimination and the right to counsel (N. Y. Const., art. I, ยง 6; Code Crim. Pro., ...

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