People v. Valletutti

In this capital case the decision reached by a majority of the court rests chiefly upon their conclusion that a proper application of section 395 of the Code of Criminal Procedure to the record at hand dictates, as a matter of law, the rejection of the defendant's confession as evidence of his guilt. I cannot reconcile that conclusion with the principle — firmly established and often applied by this court — that "if there is no conflict in the evidence with reference to threats, the question of the admission of confessions is for the court, but if there is a conflict the question ultimately is for the jury." (People v.Randazzio, 194 N.Y. 147, 156.) Another statement of the rule — which has peculiar application to the record before us — was made by Judge POUND writing for the court in People v. Barbato (254 N.Y. 170, 173): "When the evidence of the People meets the evidence of the defendant as oath against oath, with no corroboration on either side, a fair question of credibility is presented for the jury to decide." (See, also, People v.Doran, 246 N.Y. 409, 416-417; People v. Weiner, 248 N.Y. 118,122; People v. Nunziato, 233 N.Y. 394; People v.Schermerhorn, 203 N.Y. 57, 71.)

Within the rule stated above our problem comes to this — Is this a case where there is no conflict in the evidence as to the circumstances which the defendant claims made his confession involuntary? Or does the People's evidence — descriptive of conditions under which that confession was given — "meet the evidence of the defendant as oath against oath" to produce a factual conflict and thus present a question of credibility which can be resolved only by the triers of the facts?

In an effort to support the defendant's repudiation of his confession — which was then the subject of inquiry as to whether it was made under the influence of fear produced by threats — it was contended in his behalf that he had been subjected to brutal beatings which induced him involuntarily to admit his guilt. To that end the defendant testified that after his arrival at the police precinct station in Brooklyn at about two-thirty in the afternoon of Saturday, December 7, 1946, he was taken to a small room where for a period of about three quarters of an hour he was questioned by Detective Kabelka and a police lieutenant. During all that time he denied his guilt. Then followed a period of questioning when, according to his testimony, Detective Kabelka "got violent" and, in the presence of a police lieutenant, struck the defendant in the stomach and the face, grabbed him by the hair, threw him off his chair and hit him on the neck with his clenched fist. It was the defendant's testimony that he was beaten about one hundred times by Detective Kabelka and the police lieutenant, and was thrown against the wall with such force as to cause him to fall to the floor in a semiconscious condition; that when he attempted to rise he was kicked and rendered completely unconscious. Upon regaining consciousness, he was again slapped in the face and the threat was made that such treatment would continue all night. As a result of these alleged acts of violence the defendant testified that there was a "welt" on the side of his face, his "head was all bleeding * * * from where they pulled the hair out" and that "there was bunches [of hair] on the floor." Finally, according to the defendant, at three-thirty on Sunday morning (December 8th) — the date being important — he told Detective Kabelka he could stand no more and that he would sign anything the detective wanted.

With the picture in mind which the defendant gave as descriptive of his blood-soaked scalp, his welted face and his general dishevelment — all of which he claims resulted from violent treatment administered to him to induce his admission of guilt — we turn to the testimony of the assistant district attorney who arrived at that hour, about four o'clock on Sunday morning (December 8th), to take whatever confession the defendant was to make. Incidentally it may well be noted that the honesty of the assistant district attorney who took the confession was the subject of an encomium placed upon the record by counsel for the defendant and concurred in by the Trial Judge, and his conduct during his taking of the confession was commended by the defendant himself.

The assistant district attorney testified that at that early Sunday morning hour — which was within an hour after the long period of violent assaults to which the defendant claims he was subjected — the defendant's appearance was "normal", he bore no marks, redness, swellings or bruises on his face, neck, head or hands and there were no signs of blood upon him. Indeed, the assistant district attorney stated under oath that his appearance then was "no different" than his appearance at the trial. The defendant made no complaints at that time and when asked by the assistant district attorney whether he had been "treated fairly by the police?" — he answered "Yes, sir" — when asked "Do you have any complaints to make?" — he answered "No, sir".

In addition to the testimony by the assistant district attorney — which, it is important to note is in direct conflict with the defendant's description of his battered condition at that hour — the People called as witnesses every person who had been accused by the defendant of threatening him or of making violent assaults upon him. In each instance the witness denied the accusation categorically.

I find it difficult to conceive of a more direct evidentiary conflict than is disclosed by this record between the testimony of the defendant bearing upon alleged maltreatment designed to induce his admission of guilt, and the testimony of the People's witnesses on the subject of that same confession.

True it is that on December 10th, more than a day and one halfafter his confession and more than a day after he was arraigned and had been removed from the custody of the police to Raymond Street jail where he was in the custody of the Department of Correction (see New York City Charter, ch. 25, § 623, subd. 2; Administrative Code of City of New York, ch. 25), he then complained of headache and a pain in his side for which the jail physician prescribed aspirin. The jail record contains the notation that at that time he had contusions on the left anterior chest wall and numerous small bruises of the scalp. But it is to be noted that the bruises and contusions last mentioned above were first brought to the attention of those in charge at Raymond Street jail a substantial length of time after he had confessed and had been withdrawn from police custody for lodgment in that jail. In that connection there is evidence that he had made no complaint as to his physical condition on Monday morning, December 9th, when he was arraigned before a magistrate. There is also evidence that the court record made at the time of his arraignment — which record accompanied the defendant to the Raymond Street jail — bore the notation "condition good". When the time came — immediately after his arraignment — for him to be transferred from police custody to the custody of the Department of Correction functioning at Raymond Street jail, he was asked by the admittance clerk, in accord with regulations, whether he had "any cuts or bruises or any diseases" or did he wish to see a doctor for any reason. To that inquiry he responded that he had "no complaints."

The majority opinion suggests that upon the trial it was incumbent upon the District Attorney to account for contusions and bruises which the defendant claims were inflicted by the police but which concededly he did not disclose until he had been lodged in Raymond Street jail for a period of more than a day after his confession was taken. That obligation was fulfilled by the District Attorney when, after the defendant had testified, the People called to the witness stand not only every police officer whom the defendant had accused as his assailant — each of whom categorically denied the accusation — but also the assistant district attorney to whom the defendant had expressly exonerated the police of unfair treatment and who testified that at the time he took the defendant's confession the defendant looked "no different" than he did as he sat in the court at the time of his trial.

There is a significant difference between the facts in the present case and those which led to the decision in People v. Weiner (supra), where the evidence established that the defendant had a mark on his cheek and that his shirt and tie bore blood spots immediately after the police had questioned him. The present case also differs on its facts from People v.Barbato (supra) in which the proof showed that defendant had a blackened eye when arraigned and — as disclosed by a doctor's examination on the day following — swellings and black and blue spots on his body, back as well as front. In the case at bar, as already stated, the first information that the defendant had bruises, which were only on his chest and head — parts of the body defendant himself could easily have reached — came after his confession and arraignment and after he had been in jail for almost two days. If — as is not at all unlikely — the injuries were self-inflicted, the prosecution had only one method whereby it could dispute defendant's claim that he had been beaten by the police, and that was the method which it pursued by calling to the witness stand every official and every other person who had seen or spoken to defendant during the time that he was being questioned and until the moment of his arraignment and confinement in jail, each of whom denied either that he had threatened or beaten defendant or had seen or heard any evidence of threat or violence. I am at a loss to perceive what more the State could have done in this case where the injuries might well have been inflicted by the defendant himself.

Subscribing, as I do, in full measure to the majority's jealous insistence upon fair play by police officers in obtaining confessions, I still believe that, when the State — put to its proof to justify a confession as voluntary — has discharged that burden in the only way it could, by the sworn testimony of every person connected with the matter, and when the jury has accepted and credited that testimony, it goes too far, in the circumstances here presented, to say that the testimony should be cast out as unbelievable.

The conclusion I have reached was also influenced by the fact that the defendant's confession was largely narrative in form — not a succession of "yes" and "no" answers to questions propounded by inquisitors. The lurid statement of facts to be found in his narration of the crime convinces me — and apparently convinced the jury — that only a man who had lived through that experience could have volunteered the details with such accuracy.

In the light of rulings by this court cited (supra) the record of evidence, as I view it, afforded a sound legal basis not only for submission to the jury of the question whether, within the provisions of section 395 of the Code of Criminal Procedure, the defendant's confession was voluntary but also whether, within section 165 id., the time which elapsed — less than two days, including a Sunday — between Saturday afternoon (December 7th), when the defendant reached Kings County in the custody of the police, and Monday morning (December 9th) when he was arraigned, amounted to "unnecessary delay" in taking the defendant before a magistrate. Upon each of those subjects I regard the following excerpt from the court's charge to be a correct and adequate statement of the applicable law —

"It is for you gentlemen to determine from the facts in this case whether or not the arraignment of the defendant was unnecessarily and illegally delayed. In determining that question, you must take into consideration all that transpired between the time the defendant was taken into custody and his arraignment on December 9, 1946.

"If, on the basis of all the facts, you believe there was unnecessary and illegal delay, please understand, gentlemen, that you are only to consider this in connection with the question as to whether or not the admissions made by the defendant were to any extent induced by any such illegal delay. If you decide that such confession or admission was made as the result of fear induced by threats, duress, or violence, or induced by unnecessary and illegal delay in arraignment, the confession or admission so obtained cannot be used against the defendant, and is to be disregarded even if you believe it to be true. No confession is admissible unless it is voluntary. Its primary meaning imports a condition of mind that is free and unconstrained by fear, or inspired by false hope, or threats or violence, or by illegal and unnecessary delay in arraignment, but at any rate, it is a question of fact for you, the jury, to determine. You also must determine and decide, if you do accept such confession and decide that it was made voluntarily, whether or not the confession is true. Of course, if you decide that the confession was not voluntary or is not true, you must acquit the defendant."

Accordingly, I dissent and vote to affirm the judgment of conviction.

LOUGHRAN, Ch. J., THACHER and DYE, JJ., concur with DESMOND, J.; LEWIS, J., dissents in opinion in which CONWAY and FULD, JJ., concur.

Judgment of conviction reversed, etc.