New York State Court of Claims

New York State Court of Claims
GRISTWOOD v. THE STATE OF NEW YORK, # 2011-009-109, Claim No. 114040

Synopsis

The Court found that claimant established his claim for unjust conviction and imprisonment on the basis that a statement given by him during interrogation was not voluntarily given.

Case information

UID: 2011-009-109
Claimant(s): DANIEL G. GRISTWOOD
Claimant short name: GRISTWOOD
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114040
Motion number(s):
Cross-motion number(s):
Judge: NICHOLAS V. MIDEY JR.
Claimant's attorney: LYNN LAW FIRM, LLP
BY: Thomas F. Shannon, Esq.,
Of Counsel.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General
BY: Michael R. O'Neill, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: April 1, 2011
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

In this claim, claimant seeks damages for unjust conviction and imprisonment pursuant to Court of Claims Act 8-b. On August 20, 1996, claimant was convicted by jury verdict of attempted murder in the second degree and criminal possession of a weapon fourth degree. Claimant was sentenced on September 27, 1996 to a term of 12 to 25 years on the attempted murder conviction, and one year on the criminal possession of a weapon conviction. The judgment of conviction was vacated in 2005 and the indictment was dismissed in 2006, after claimant had been incarcerated for over nine years.

The trial of this claim was bifurcated, and this decision therefore addresses solely the issue of liability. At the trial, eight witnesses were called, and the summary of their relevant testimony will follow, although not necessarily in the order in which they were called.

Claimant testified that he had been employed for ten years with Syracuse Label Company. He married Christina Dove in 1986, and they had five children together, who in 1996 ranged in age from one to nine years of age. Claimant recounted the events of January 11 through 12, 1996, events which led to the criminal charges against him and his eventual conviction.

Claimant testified that on the morning of January 11, 1996, he awoke at his usual time, approximately 9:00 a.m., and that he worked his regular shift at Syracuse Label Company, from 2:15 p.m. until 11:45 p.m. He testified that following work, he and a few co-workers went out for a few drinks at the Crossroads Tavern. They stayed at the tavern until closing time, approximately 2:25 to 2:30 a.m. in the early hours of January 12th, at which time he left for home. Claimant testified that when he arrived home at approximately 3:00 a.m., he turned on the television, had a cigarette, and drank some iced tea.

Claimant testified that he then went upstairs and discovered his wife in their bed with her head covered in blood. He immediately called his aunt for assistance, and then called 911. Shortly thereafter, police and medical personnel arrived. Claimant testified that he went willingly with the police to the North Syracuse Police Barracks at approximately 4:15 a.m., believing that he was assisting the police in helping to apprehend his wife's assailant. At approximately 8:00 that morning, while at the North Syracuse Police Barracks, claimant voluntarily signed a statement for Investigator Matthew A. Tynan, detailing these activities and actions, and denying any involvement in the assault on his wife (Exhibit 1).

Claimant testified that once he gave this statement, another Investigator, Frank J. Jerome, became aggressive with him, accusing him of lying and making inconsistent statements. During all this time, claimant testified that he was detained in a six foot by eight foot long room, which he never left.

Claimant testified that investigators then suggested that he take a polygraph exam, to which he willingly agreed. Claimant testified that in his mind, he believed he could immediately take the test, that it would not take very long, and he could then go home. Claimant testified that the polygraph exam, however, took four to six hours, and that during the course of the exam, he could hardly keep his eyes open and that he kept falling asleep. Claimant testified that at the end of the exam, Investigator John Fallon, who had administered the test, stated that he did not believe claimant and that he was lying. Investigators Jerome and Tynan then came into the room and escorted claimant into another room where they continued to interrogate him. Claimant testified that it was a very heated interrogation, and they told claimant that if he did not sign some papers, he would never see his children again.

Claimant testified that he had no recollection of signing a second statement (Exhibit 2) and denied that he provided the investigators with the content of that statement. Claimant testified that the room in which he was confined was very hot, that he was sweating and crying, and that the investigators did not provide him with any food, drink, tissues, or anything. This second statement was signed at 7:09 p.m., the evening of January 12, 1996, in which claimant "remember[ed] seeing my arm and my fist going toward her head and I remember seeing the hammer on a pillow on the floor next to [her] head."

Claimant testified that immediately after signing this statement, he continued to insist that he had nothing to do with the assault on his wife, and that he had no idea what he had signed.

Investigator Tynan, Investigator Jerome, and Norman Ashbarry, a Senior Investigator for the New York State Police at the time of this incident, all took part in the interrogation of claimant throughout the day of January 12, 1996.

Investigator Tynan testified that he was with claimant from the time that he arrived at claimant's home on the morning of January 12th, until claimant's arrest that evening. Investigator Tynan testified that he took the initial statement (Exhibit 1) from claimant at the North Syracuse Police Barracks, and that he typed this statement, which was signed at approximately 8:00 that morning. Investigator Tynan further confirmed that during the time that claimant was at the North Syracuse Police Barracks, claimant was confined to Investigator Ashbarry's windowless office.

Investigator Tynan also confirmed that during the interrogation process, claimant was cooperative, and that the investigators had not discovered any inconsistencies in the details which claimant had provided in his original statement.

Investigator Jerome testified that he had also arrived at the scene of the incident at the Gristwood residence at approximately 4:30 a.m. on January 12, 1996. He testified that claimant was considered a suspect because he had been the last adult to have spoken with his wife, and that he was the one who had found her after the assault. He acknowledged that he was accusatory towards claimant during the interrogation, and admitted that he told claimant that if he took a polygraph, claimant could prove that he was telling the truth. He acknowledges that there was an inference that if claimant passed the polygraph exam, he would be able to return home.

Investigator Jerome also testified as to the interrogation tactics that he used during the day-long questioning of claimant, including repeatedly telling claimant that he did not believe him. He admitted that he used aggressive interrogation tactics during this time.

Investigator Jerome also testified that no part of the initial questioning of claimant at the barracks, the polygraph exam, the further interrogation of claimant during the day, or the taking of the two separate statements were videotaped, even though video cameras were readily available.

Senior Investigator Ashbarry was the primary investigator on this case. He acknowledged that at the outset, claimant was cooperative and provided a voluntary statement at approximately 8:00 that morning. Investigator Ashbarry testified that he also became accusatory towards claimant after his initial statement, even though there was no physical evidence or any other indication contradicting the timeline provided by claimant in that initial statement.

John Fallon, an Investigator with the State Police stationed in Oneida, New York, testified that he administered the polygraph examination to claimant during the morning of January 12, 1996. Investigator Fallon acknowledged that, at the time, he was not a certified polygraph administrator, but had taken a course in polygraph administration in May, 1995. Investigator Fallon confirmed that the polygraph examination took approximately four hours.

Investigator Fallon acknowledged that prior to the examination, Investigator Jerome told him that he did not believe that claimant was telling the truth, although Investigator Fallon denied, at trial, that this information influenced his administration or interpretation of the test.

Investigator Fallon testified that a number of physiological factors could affect the validity of the polygraph test results, including mental status, medical condition, stress, and whether a person was tired. Investigator Fallon stated that he knew at the time that claimant had not slept the previous night, that he had consumed several beers following work, and that he had told investigators that he had found his wife brutally beaten when he came home from work. Investigator Fallon further testified that during the course of the exam, claimant had difficulty staying awake, and that he did not make any admissions either prior to or during the examination process.

Investigator Fallon testified that following the examination, he advised the investigators that in his opinion, claimant had not been entirely truthful during the exam. The investigators then immediately took claimant to another room to continue their interrogation.

In his report of the polygraph examination, Investigator Fallon provided a "tentative opinion" that claimant "did not tell the entire truth". His opinion, however, "was restricted because Mr. Gristwood was somewhat physiologically unresponsive", possibly because he "did not have any sleep the previous night" which, with some people, "adds to the complexity of the polygraph examination." (Exhibit N).

Nicholas J. DeMartino, an Assistant District Attorney for Onondaga County who prosecuted the case against claimant, also testified at the trial. Mr. DeMartino had no explanation as to why claimant's initial statement and interview were not videotaped, or why the polygraph examination was not videotaped. Similarly, he had no explanation as to why the State Police did not videotape the subsequent interrogation which occurred after the polygraph examination.(1)

Mr. DeMartino candidly acknowledged that the second statement obtained from claimant was the only evidence on which the jury could have based its guilty verdict of attempted murder, in that there was no physical or direct evidence whatsoever linking claimant to the crime. Mr. DeMartino testified that without this statement, there would have been no probable cause to even arrest and prosecute claimant, let alone obtain a conviction.

Hon. John J. Brunetti, Acting Supreme Court Justice, was the Judge who presided over claimant's trial in 1996, and was also the Judge who granted claimant's motion vacating the judgment of conviction. Judge Brunetti confirmed that claimant had been convicted, following a jury trial, on August 20, 1996 of attempted murder in the second degree and criminal possession of a weapon. He further confirmed that on September 27, 1996, he sentenced claimant to an indeterminate sentence of 12 years to 25 years on the attempted murder conviction, and also sentenced him to a one year concurrent term on the criminal possession of a weapon conviction.

Judge Brunetti testified that on June 16, 2004, claimant filed a motion pursuant to Criminal Procedure Law 440.10, requesting that the Court vacate his judgment of conviction based upon newly discovered evidence. Judge Brunetti further testified as to this newly discovered evidence, which arose when one Mastho Davis walked into a different courtroom, before a different Judge, on March 18, 2003 and stated that he wanted to confess to a murder. Judge Brunetti testified as to the statement that was subsequently taken from Mr. Davis and that this statement, together with a tape-recorded interview, constituted newly discovered evidence which he found would have undoubtedly led to a different result in claimant's trial.

In a 22 page Decision dated August 30, 2005 (Exhibit 6), Judge Brunetti reviewed in extensive detail, the statement made by Mr. Davis. In this Decision, Judge Brunetti made reference to 18 "unassailable facts"(2) contained in that statement which provided corroboration for its truth and accuracy, and that he relied upon this statement in granting claimant's motion to vacate the judgment of conviction. He also testified, as was also addressed in his Decision, that there was no possibility that claimant could have been complict in this decision by Mastho Davis to confess to the assault.

Judge Brunetti testified that once his order vacating the judgment of conviction was issued, claimant was then released from custody. He testified that no appeal was taken from his Decision, and that in July, 2006, the District Attorney ultimately consented to a dismissal of the indictment (Exhibit 7).

Judge Brunetti also testified with regard to the admissibility of the second statement (Exhibit 2) signed by claimant which formed the basis of his conviction. Judge Brunetti confirmed that the statement was the subject of a suppression hearing held prior to the criminal trial, and that he had determined that the statement was voluntarily given, and was therefore admissible at trial. Judge Brunetti acknowledged at trial that since that time, his view with regard to confessions is "much more educated" and that his knowledge regarding confessions is "much more expansive than it was in 1996".

Allison D. Redlich, a Clinical Psychologist and an Assistant Professor at the University of Albany, State University of New York, School of Criminal Justice, was qualified by the Court as an expert and testified on behalf of the claimant. She stated that the area of police-induced false confessions is one of her areas of expertise.

Based upon her review of the circumstances present in this matter, Dr. Redlich characterized the custodial questioning of claimant on January 12th as a "highly coercive interrogation", based upon several factors, including the time involved, the fact that claimant was fatigued (claimant having been awake for approximately 34 straight hours when he signed the second statement), his awareness of the horrific injuries suffered by his wife, and the fact that he had been deprived of food, drink, and cigarettes during the interrogation process. Based upon her review of the two different statements made by claimant, Dr. Redlich testified that the second statement was notable for its complete lack of detail, when compared to the first statement, even though this second statement had been obtained after 14 to 15 hours of interrogation.

Based upon a consideration of all of these factors, Dr. Redlich concluded that the second statement made by claimant at approximately 7:00 p.m. on the evening of January 12, 1996 was not voluntarily made.

DISCUSSION

A claimant faces a heavy burden in order to succeed on a claim for unjust conviction and imprisonment under Court of Claims Act 8-b (Reed v State of New York, 78 NY2d 1). Claimant must prove, by clear and convincing evidence, that: (1) he was convicted of one or more felonies or misdemeanors, was sentenced to a term of imprisonment thereon, and has served all or part of that sentence; (2) his judgment was reversed or vacated pursuant to a statutorily enumerated ground; (3) he did not commit any of the acts charged in the accusatory instrument; and (4) he did not by his own conduct cause or bring about his conviction (Court of Claims Act 8-b[5]). These requirements must be strictly construed (Torres v State of New York, 228 AD2d 579), and the "linchpin" of any proceeding under this statute is innocence (Ivey v State of New York, 80 NY2d 474, 479).

The standard of clear and convincing evidence is more demanding, and requires a greater burden of persuasion, than the standard of preponderance of the evidence, which is ordinarily required in a civil trial (Fisch on NY Evidence, 1090 at 614 [2nd Ed]).

In this particular matter, claimant has satisfied the Court, through documentary evidence and the testimony of Judge Brunetti, that he has met the first two requirements of this statute. In fact, defendant concedes that claimant has satisfied these first two requirements. Defendant maintains, however, that claimant has failed to establish, by clear and convincing evidence, his innocence in these crimes, and even if so, that he caused or brought about his conviction by his own conduct, through his confession.

The Court will first consider the issue of whether claimant has established his innocence by clear and convincing evidence. In its consideration of this issue, the Court has placed great weight upon the Decision of Judge Brunetti which vacated claimant's judgment of conviction. In this considered and well-reasoned Decision, and as previously noted above, Judge Brunetti set forth 18 "unassailable" facts that corroborated the independent confession to this crime by Mastho Davis. Furthermore, Judge Brunetti was absolutely convinced that there was no possibility that claimant could have been involved, in any manner whatsoever, in developing this confession with Mr. Davis. The Court is well aware that the central issue in a CPL 440 motion is not the guilt or innocence of the defendant, but rather whether the new evidence (in this case the Mastho Davis confession) is sufficiently reliable so that it would probably change the result of the trial which produced the guilty verdict. In the application before Judge Brunetti, claimant's burden of proof was only to establish, by a preponderance of the evidence, that if the Davis statement had been received into evidence at trial, it is probable that claimant would have received a more favorable verdict at that trial. Judge Brunetti found that the statement of Mastho Davis was sufficiently reliable and concluded "that the defendant [claimant] has 'met his burden of proof and established by a preponderance of the evidence that, had [the Davis police statement] been received at trial, a probability exists that the verdict would have been more favorable to him.'" (See Decision of Judge Brunetti, Exhibit 6, page 22, citing People v Wong, 11 AD3d 724).

As set forth above, in this proceeding claimant is faced with a significantly more difficult hurdle, since he must establish his actual innocence by clear and convincing proof. Nevertheless, having reviewed the Mastho Davis statements (Exhibits 8 & 9), and paying particular attention to the 18 corroborating facts cited by Judge Brunetti in his Decision, this Court is of the opinion that Mastho Davis, acting alone, was the sole perpetrator of the assault against Ms. Gristwood, and that claimant has therefore established his innocence by clear and convincing evidence. In arriving at this decision, this Court has also taken into consideration the fact that the District Attorney did not appeal Judge Brunetti's Decision, and eventually consented to a dismissal of the indictment against claimant.

The more difficult issue for resolution in this claim, however, is whether claimant can establish, by clear and convincing evidence, that "he did not by his own conduct cause or bring about his conviction." (Court of Claims Act 8-b[5][d]).

There is no question that a claimant's uncoerced confession, though subsequently shown to be false, is behavior which contributes to one's conviction and thus precludes recovery under  8-b (Ausderau v State of New York, 130 Misc 2d 848, affd 127 AD2d 980, lv denied 69 NY2d 613). In fact, even though false, "an uncoerced confession of guilt" is an example of the type of conduct which would bar recovery that was cited by the Law Revision Commission when the statute was originally enacted (1984 Report of NY Law Rev Commn, 1984 McKinney's Session Laws of NY, at 2932, par. 3).

In this particular matter, there can be no question that claimant's second statement, given at approximately 7:10 p.m. on the evening of January 12, 1996, contributed to his conviction. In fact, Assistant District Attorney DeMartino testified that there was no direct or physical evidence connecting claimant to the crime, and that claimant's statement was the centerpiece of the prosecution's case. He further testified that without that statement, claimant would not have even been arrested or prosecuted, let alone convicted.

However, a "coerced false confession does not bar recovery under section 8-b because it is not the claimant's 'own conduct' within the meaning of the statute" (Warney v State of New York, 16 NY3d 428, 436), and claimant contends that he was coerced into giving this second statement after hours of intense, prolonged interrogation.

The Court notes, at the outset, that this statement was deemed admissible following a pre-trial suppression hearing, and was obviously admitted into evidence at claimant's criminal trial. Therefore, the Court must first determine if it may make its own independent finding (in the context of this 8-b proceeding) as to whether a statement or confession was coerced, given that the statement was previously determined to be voluntary and admissible in the criminal proceeding. While my colleagues on the Court of Claims have reached different conclusions on this point(3) , the Court of Appeals (even though it did not directly address this issue) has recently made clear, in Warney v State of New York, supra, that in order to determine whether a claimant caused or brought about his own conviction by a second confession or statement, the Court of Claims must examine the circumstances behind such confession or statement.(4)

Therefore, while there may be a fine line between effective police interrogation procedures and improper tactics in criminal prosecutions, the Court, in the context of a civil claim brought pursuant to 8-b, must nevertheless determine on the facts presented in that case, whether a claimant gave an uncoerced confession thus contributing to his conviction.

In this claim, as in Warney, claimant's conviction was based primarily on his own statement, which the criminal trial court determined to be voluntary. The particular circumstances of each claim, naturally, are different. In this claim, claimant initially provided a four page statement at approximately 8:00 a.m. on the morning of the incident (January 12, 1996), detailing his activities from approximately 2:00 p.m. on January 11, 1996 to the time that he discovered his wife at home, following the assault, in the early morning hours of January 12th . In this statement, claimant did not make any admission to even suggest that he was involved in the attack on his wife. Eleven hours later, at approximately 7:00 p.m., claimant signed a second statement, not nearly as detailed as the first, in which he made incriminating statements, although he did not specifically admit to striking his wife with a hammer (the weapon used in the assault).

The uncontroverted evidence clearly established that after claimant made his original non-incriminating statement at approximately 8:00 a.m. on the morning of January 12, 1996, he was detained as a suspect (in fact, the only suspect), subjected to continued interrogation throughout that day, and deprived of food, drink and sleep until he made his second statement at approximately 7:00 p.m. that evening. Testimony also established that claimant had been awake since approximately 9:00 a.m. on January 11, 1996 and that he worked from 2:15 p.m. to 11:45 p.m. that day. Furthermore, while in custody and throughout his questioning during the day of January 12, 1996, and even immediately after signing the second statement at approximately 7:00 p.m., claimant steadfastly maintained his innocence.

The Court has reviewed these two written statements made by claimant, and finds it readily apparent that the facts provided in the first statement were more detailed, consistent, and fact-based than those provided in the second statement.

The Court also notes that Judge Brunetti, who presided over claimant's criminal trial and made the determination that this second statement was admissible, testified at this trial that he has developed, over time, a much more educated view regarding confessions, including the role that issues such as fatigue and the length of time of the interrogation process may play in obtaining confessions, leading one to believe that Judge Brunetti might very well have reached a different decision today regarding the admissibility of this second statement.

After a consideration of all the testimony and documentary evidence, the Court finds that claimant, by clear and convincing evidence, has established that his second statement cannot be considered an uncoerced confession. As stated by Judge Smith in his concurring opinion in Warney, "a confession cannot fairly be called 'uncoerced' that results from . . . calculated manipulation . . . even if the police did not actually beat or torture the confessor, or threaten to do so." (Warney v State of New York, supra at 438). Based on the foregoing, and as buttressed by the testimony presented by claimant's expert pertaining to coerced confessions, this Court finds that claimant has established, by clear and convincing evidence that his second statement, the linchpin of his criminal conviction, was not completely voluntary. Even though this second statement by claimant unquestionably led to his conviction, it was the product of several hours of aggressive, intense interrogation, and certainly was not freely given. In this Court's opinion, it cannot be viewed as the type of conduct which should preclude a claimant from recovering under 8-b.

Accordingly, the Court finds that claimant has satisfied, by clear and convincing evidence, all of the requirements set forth in Court of Claims Act 8-b(5), and is therefore entitled to a judgment against the State for unjust conviction and imprisonment, to which the State must respond in damages. A trial limited to the issue of damages will be scheduled as soon as practicable.

Any motions not heretofore ruled upon are hereby denied.

Finally, even though claimant asserted in his claim a cause of action in the deprivation of his Constitutional and civil rights, no proof was adduced at trial to establish this cause of action, and it is hereby dismissed.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY

April 1, 2011

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims


1. The Court is aware that Hon. William J. Fitzpatrick, Onondaga County District Attorney, fully supports a policy that requires all custodial interrogations and statements to be videotaped.

2. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.

3. Compare Cortes v State of New York (Ct Cl, April 15, 2005, Nadel, J., Claim No. 108167, UID No. 2005-014-002) (the Court as a fact-finder, must make an independent determination) to Duval v State of New York (Ct Cl, October 4, 2002, Patti, J., Claim No. 105548, Motion Nos. M-64867, M-65282, CM-65283, UID No. 2002-013-034) (the Court may not determine the voluntariness of a confession where it has already been reviewed by another tribunal). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us

4. The Court is aware that in Warney, the Court of Appeals reviewed the dismissal of an unjust conviction claim prior to trial rather than, as here, a decision made following trial. In Warney, the Court of Appeals found that factual findings made by the trial court in dismissing the claim were premature and inappropriate at that stage. Those factual findings, including a determination as to whether the confession was coerced, should have not been made, as here, until the actual trial of the claim.