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HomeMy WebLinkAbout99-0426 criminalCOMMONWEALTH Mo GARY DEAN BARRICK IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0426 CRIMINAL TERM OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE BAYLEY, J. ORDER OF COURT ~ day of September, 1999, IT IS ORDERED: AND NOW, this (1) The motion of defendant to suppress the statements he made to the State Police after a polygraph examination was administered, and before he was arraigned before a District Justice on the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license, IS DENIED. (2) The motion of defendant to suppress all statements he made to the State Police after he was arraigned before a District Justice on the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license, IS GRANTED. (3) The motion of defendant to sever the counts of theft and receiving stolen property from the count of criminal homicide, IS GRANTED. (4) The motion of defendant to sever the counts of illegally possessing and using a firearm and illegally carrying a firearm without a license from the count of criminal homicide, IS DENIED. Jonathan R. Birbeck, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant :saa COMMONWEALTH Mo GARY DEAN BARRICK IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0426 CRIMINAL TERM OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., September 20, 1999:-- Defendant, Gary Dean Barrick, is charged with the criminal homicide of Veronica Lynn Vera,~ theft? receiving stolen property? illegally possessing or using a firearm,4 and illegally carrying a firearm without a license,s Defendant filed an omnibus pretrial motion for relief that includes a motion to suppress evidence and a motion to sever the count of criminal homicide from the other four counts. A hearing was conducted on August 3, 1999, and the issues have been briefed. FINDINGS OF FACT Veronica Lynn Vera was reported missing as of February 3, 1999. An ~ 18 Pa.C.S. 2501, 2502(a). 2 18 Pa.C.S. 3921(a). 3 18 Pa.C.S. 3925. 4 18 Pa.C.S. 6105. s 18 Pa.C.S. 6106. 99-0426 CRIMINAL TERM investigation was conducted by the Pennsylvania State Police during which they learned that Gary Barrick was the last person with whom Vera had been seen. At 10:00 a.m., on February 10, 1999, Corporal Steven Junkin and Trooper Scott Miller went to the home of Barrick. In addition to investigating the circumstances involving the missing Yera, the officers were aware that in the fall of 1998, Barrick's stepfather, Jake Myers, had reported that two handguns had been stolen from his house. The officers told Barrick that they were investigating the disappearance of Veronica Yera and the circumstances involving the handguns which had been stolen from his stepfather. Barrick told the officers that he would show them the route he had traveled with Yera when he last saw her. At 10:18 a.m., he voluntarily went with the police officers in their car to show them that route which included going to the residence of Heather Myers where Yera had last been seen. During the course of their travel the officers asked Barrick questions. Barrick made no inculpatory statements. Shortly before 1:00 p.m. the officers then asked Barrick if he would come to the state police barracks so that they could talk further. Barrick said he was willing to but he had to work that afternoon. The officers knew that Barrick had been fired from his job but realized that he had not yet been told. They drove him to his residence at 1:00 p.m. The officers waited until 3:00 p.m. and called Barrick. As they expected, Barrick was home. He agreed to a request to continue their discussions at the state police barracks. Barrick's car was not working and he asked for a ride to the barracks. The officers picked him up and they arrived at the barracks at 3:20 p.m. Once there Barrick -2- 99-0426 CRIMINAL TERM was reminded by Corporal Junkin and Trooper Miller that they wanted to further discuss with him the circumstances involving the missing Veronica Vera. They also told him that he was free to leave at any time. The officers then tape recorded an interview that lasted until 4:56 p.m. Barrick made no inculpatory statements. When the interview ended the officers told Barrick that they would either drive him back to his nearby home or would call a cab or he could walk. Barrick went to the lobby of the barracks and smoked a cigarette. While there Corporal Junkin and Trooper Miller approached him and asked if he would take a polygraph examination. Barrick unhesitatingly said "let's do it gentlemen." A polygraph examiner, Corporal Holly Fegley, had been previously called to the barracks and was available to do a polygraph. At 5:10 p.m., defendant was informed of the following Miranda rights and signed this waiver:6 I do hereby voluntarily request and authorize Holly FEGLEY, a Polygraph Examiner for the Commonwealth of Pennsylvania, to interview me with respect to the following investigation: MISSING PERSON. I also request and authorize Holly FEGLEY to conduct a Polygraph Examination upon me, and if necessary, to interview me following said Polygraph Examination. I further specify and waive any and all rights to privacy that I have and may have with respect to the interview and the taking of the Polygraph Examination. The following are my Constitutional Rights. By signing my name at the bottom of this form, I acknowledge that I have read and fully understand these Rights: I have an absolute Right to remain silent. Anything I say can and will be used against me in a Court of Law. I have the Right to talk with an attorney before and have an attorney present with me Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). -3- 99-0426 CRIMINAL TERM during questioning, if I so desire. If I do decide to answer any questions, I may stop at any time I wish. WAIVER I fully understand the statement advising me of my Rights, and I am willing to answer questions. I do not want an attorney and I understand that I may refuse to answer any questions at any time during the questioning. No promises have been made to me, nor any threats made against me. I understand the Polygraph Examination is voluntary and that nobody can force me to submit to this examination. I further stipulate that I have no mental or physical deficiency that would interfere with this Examination. I hereby authorize the Pennsylvania State Police to disclose, both orally and in writing, the results and opinion of the Polygraph Examination and statements made by me to all interested parties. I understand that such results and opinions may prove unfavorable to me. I further understand that anything I say, whether during the interviews or the Polygraph Examination, can be used against me in a Court of Law .... I request that the interviews and Polygraph Examination begin at this time. (Emphasis added.) Corporal Fegley conducted a polygraph examination which lasted until 8:35 p.m. Generally, Barrick's statements were consistent with what he had told Corporal Junkin and Trooper Miller earlier. However, near the end of the polygraph examination Barrick made some inculpatory statements regarding the missing Veronica Vera. Prior to this time the state police had suspected foul play with respect to the missing Veronica Vera but did not know she was dead. Thus, at this point, based on his inculpatory statements, Barrick was no longer free to leave the state police barracks, and he was in custody. Corporal Fegley then left the polygraph room. Trooper Miller interrogated Barrick from 8:35 p.m. until 8:45 p.m. Barrick made further inculpatory statements regarding Veronica Vera and he drew the trooper a map of where her body was and where he had discarded a gun he had used to shoot her. At 8:45 p.m. Trooper Miller -4- 99-0426 CRIMINAL TERM turned a tape recorder on and for the next eleven minutes Barrick repeated his inculpatory statements. Barrick was taken before a District Justice at 1:00 a.m. In the interim he had made one additional inculpatory statement regarding the shoes he had worn when he killed Yera. Barrick was arraigned at 1:00 a.m., February 11, 1999, on charges of theft, receiving stolen property, illegally possessing and using a firearm, and carrying a firearm without being licensed. At that time the state police believed that defendant had used the gun stolen from his stepfather, Jake Myers, to kill Veronica Vera. During the arraignment Barrick sought the appointment of an attorney and a preliminary hearing was set by the District Justice on those charges. Barrick did not make bail. Following the arraignment, Corporal Junkin and Trooper Miller put him in their police car at 1:21 a.m., February 11th. The officers asked him whether he was willing to continue to discuss the homicide of Veronica Vera. Defendant was told his Miranda rights and signed the following waiver: I fully understand the statement warning given of my rights and I am willing to answer questions. I do not want an attorney and I understand that I may stop answering questions any time during the questioning. No promises have been made to me, nor have I been threatened in any manner. This waiver is for the purpose of discussing the criminal homicide investigation (Vera) not the Theft of Weapons Charges. (Emphasis added.) The officers had previously dispatched other investigators to the scene depicted on the map that Barrick had drawn as to where Veronica Vera's body was and where he had discarded the gun which he used to shoot her. The officers drove Barrick to that -5- 99-0426 CRIMINAL TERM scene. During that trip and at the scene Barrick made inculpatory statements regarding the death of Vera. Defendant was then taken to the Cumberland County Prison where he was committed at 3:00 a.m. on the charges for which had earlier been arraigned and had not made bail. On February 16, 1999, the within charges which include a count of the criminal homicide of Veronica Lynn Vera were filed. The four charges for which Barrick had been arraigned on February 11, 1999, were dropped and refiled in the same form on February 16th in conjunction with the count of criminal homicide. The resulting informations charge "[t]hat on or about or between Sunday, the first day of November, 1998, and Wednesday, the third day of February, 1999," defendant committed the five crimes charged. The affidavit for probable cause to the criminal complaint sets forth that Barrick told the police that he had stolen two weapons, a 38 caliber and a 9 millimeter from the home of Jake Myers, that he had shot Veronica Vera with the 38 caliber handgun, and that Jake Myers, on January 19, 1999, had reported that a 38 caliber and a 9 millimeter had been stolen from his home. MOTION TO SUPPRESS EVIDENCE FIFTH AMENDMENT CLAIM Defendant was not in custody until he made the incriminatory statements to Corporal Fegley near the end of the polygraph examination. Therefore, all of the statements that he made to the Pennsylvania State Police at all times prior to that point are admissible into evidence. Commonwealth v. Rucci, 543 Pa. 261 (1996). -6- 99-0426 CRIMINAL TERM Defendant alleges a Fifth Amendment violation arguing that the incriminating statements he made to Trooper Miller after he had taken the polygraph administered by Corporal Fegley must be suppressed because he was not re-Mirandized by Trooper Miller. Determining whether statements made to an interrogator other than the polygraph examiner requires an examination of the totality of the circumstances. Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). In Commonwealth v. Upchurch, 355 Pa. Super. 425 (1986), the defendant alleged that during questioning he was interviewed by two different police officers. Prior to being interrogated by the first officer, the defendant waived his Miranda rights. He was not re-Mirandized before being questioned by the second officer. The defendant sought to suppress the statements he made to the second officer. The Superior Court of Pennsylvania, in upholding the conviction of the defendant, stated: The appellant correctly sets out the criteria to be evaluated in reviewing this issue as: (1) the time lapse.between the last Miranda warnings and the appellant's statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the appellant's statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the appellant's statement; and (5) whether the statement elicited during the complained-of interrogation differed significantly from other statements which had been preceded by Miranda warnings. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971). The time different here was four and one-half hours and the move was between rooms of the same building. The detective was initially present when Officer Riley took over so there was a minimal break of continuity. In addition, the second statement did not differ significantly from other statements but rather differed in degree of culpability. We therefore decline to find reversible error. (Footnote omitted.) -7- 99-0426 CRIMINAL TERM In the case sub judice, defendant signed a Miranda waiver at 5:10 p.m., agreeing to a polygraph examination and an interview after the examination. Even though the warnings given to defendant stated that Corporal Fegley would perform the polygraph examination and any interview thereafter, defendant signed a waiver acknowledging that he knew that he could seek counsel and/or stop the polygraph examination or any subsequent interview at any time, and that any statements he made could be used against him in court. Defendant was continuously questioned during a polygraph examination that started a little after 5:10 p.m. until he made some incriminating statements shortly before 8:35 p.m. Corporal Fegley then left and Trooper Miller immediately continued the interrogation.7 Defendant did not ask for Trooper Miller to stop, or for Corporal Fegley to continue the interview, or for an attorney. Rather, during the next twenty-one minutes that Trooper Miller interviewed him, he freely elaborated on the inculpatory statements that he had just made to Corporal Fegley and had his statements tape recorded. While defendant had by his own account deceived the state police until he made his inculpatory statements to Corporal Fegley, once those admissions occurred the statements he made in the subsequent twenty-one minute interview by Trooper Miller did not differ significantly. Based on the totality of circumstances we conclude that the motion of defendant to suppress evidence on the 7 Corporal Fegley and Trooper Miller testified that the reason Miller interrogated defendant after the completion of the polygraph examination was that Fegley, who was pregnant, had become ill. -8- 99-0426 CRIMINAL TERM basis that he was not re-Mirandized by Trooper Miller is without merit. SIXTH AMENDMENT CLAIM Defendant alleges a Sixth Amendment violation arguing that all statements he made to the police after he was arraigned before a District Justice on the charges of theft, receiving stolen property, illegally possessing and using a firearm and illegally carrying a firearm without a license must be suppressed because his right to counsel attached at the arraignment on those charges. The right to counsel attaches at the first formal proceedings against an accused. McNeil v. Wisconsin, 501 U.S. 171,111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Arraignment is a formal proceeding. Commonwealth v. Hackney, 353 Pa. Super. 552 (1986). In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L. Ed.2d 481 (1985), the Supreme Court of the United States held that: Once the right to counsel has attached and been asserted, the State must honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. We have on several occasions been called upon to clarify the scope of the State's obligation in this regard, and have made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel. (Footnote omitted.) Thus, it was held that where the police knowingly circumvented an accused's right to have counsel present in a confrontation with an agent of the state, the defendant's Sixth Amendment right was violated. -9- 99-0426 CRIMINAL TERM In In Interest of Pack, 420 Pa. Super. 347 (1992), the defendant was arrested for theft, receiving stolen property and criminal conspiracy. He was a juvenile and an adjudicatory hearing was set for a subsequent date. Before that date the Commonwealth arrested him on charges of burglary and criminal trespass arising out of the same incident for which he had been arrested on the prior charges. The theft, receiving stolen property and criminal conspiracy charges were refiled and the Commonwealth withdrew the original charges. When the defendant was rearrested he waived his Miranda rights and gave a statement to a detective. He later moved to suppress that statement on the basis that his Sixth Amendment right to counsel had been violated. The trial court denied the motion to suppress evidence but the Superior Court reversed. The Court stated: Once charges are initiated against a suspect.., his Sixth Amendment right to counsel attaches and he may not be interrogated [without counsel] regarding the offenses for which he is charged. However, defendant may be interrogated regarding unrelated offenses, unless he has also invoked his Fifth Amendment right to counsel. We find that the Pennsylvania Supreme Court has interpreted the Sixth Amendment right to counsel, which is offense specific, to apply to all offenses arising from the same incident for which a defendant is charged. We refer the Commonwealth to the Supreme Court's decision in Santiago, supra, whereby the Court held that the right to counsel under the Sixth Amendment does not bar officials from interrogating a defendant for other unrelated offenses. Santiago, 528 Pa. at 521,599 A.2d at 202. Here, the burglary charge arose from the same incident for which the other charges were brought against appellant. Moreover, the statement appellant gave to Detective Butler tended to prove the offense of both burglary and receiving stolen property. To hold otherwise, -10- 99-0426 CRIMINAL TERM would allow the Commonwealth to circumvent the Sixth Amendment right to counsel merely by charging a defendant with additional related crimes. (Emphasis added.) See also Commonwealth v. Santiago, 528 Pa. 516 (1991). In Commonwealth v. Laney, 729 A.2d 598 (1999), a fire policeman was shot in the Borough of Carlisle on July 12, 1997. The police responded and as the investigation continued a large crowd assembled outside a roped off crime scene. Appellant was in that crowd and was heard by the police to yell "The mother fucker deserved to get shot," "He doesn't belong in our neighborhood," and "Fuck the police." On July 18, 1997, appellant was arrested on an unrelated drug charge and for disorderly conduct as a result of the incident at the crime scene on July 12th. He was arraigned and failed to make bail. While in prison awaiting disposition of the charges, a cellmate informed the police that appellant had admitted to him that he had shot the fire policeman on July 12th. The informant was outfitted with a hidden tape recorder and while in their cell in Cumberland County, he engaged appellant in a tape recorded conversation during which appellant admitted that he had shot the fire policeman. Appellant sought to suppress those statements arguing that his Sixth Amendment right to counsel had been violated because his arrest and detention on the disorderly conduct charge was so closely tied to the then uncharged shooting of the fire policeman that his assertion of a right to counsel after the disorderly conduct arrest precluded his subsequent interrogation by the police informant about the shooting. This court denied the motion to suppress which was affirmed by the Superior Court of Pennsylvania. The -11- 99-0426 CRIMINAL TERM Superior Court citing to In Interest of Pack, supra, stated that although the shooting and the disorderly conduct were arguably part of one script, the incidents were simply not related in any relevant sense. The assault occurred before the disorderly conduct There were unique elements in each crime and they were proven by different began. facts. In the case sub judice, we must determine under the Sixth Amendment whether defendant could be approached and interrogated with regard to the alleged homicide of Veronica Yera once he was formally arraigned and had sought counsel on the gun charges before the District Justice notwithstanding that he signed a new Miranda waiverwhich he acknowledged was "[flor the purpose of discussing the criminal homicide investigation (Vera) not the Theft of Weapons Charges." The Commonwealth alleges that defendant killed Veronica Vera with a handgun that he either stole from his stepfather or received it knowing that it was stolen, and that when he committed the killing he illegally possessed and used the firearm that he was illegally carrying without a license. As in Commonwealth v. Laney, supra, we conclude here that the prior theft of the firearm from Jake Myers or the receiving of the stolen firearm are separate unrelated offenses the proof of which involve different facts from that of the homicide charge. However, as in In Interest of Pack, supra, we conclude here that the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license are related to the alleged homicide of the killing of Veronica Yera with that firearm. The re-Mirandizing of defendant who was approached by the state police to -12- 99-0426 CRIMINAL TERM give further statements after he was arraigned does not get around defendant's Sixth Amendment rights. To hold otherwise would allow the Commonwealth to circumvent defendant's Sixth Amendment right to counsel by delaying charging him with the criminal homicide that they had probable cause to believe that he had committed when they filed the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license which it is alleged defendant used to kill Veronica Vera. Accordingly, all statements made by defendant after he was arraigned on the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license must be suppressed. MOTION TO SEVER Defendant moves to sever all of the gun charges from the count of criminal homicide. In Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997), the Supreme Court of Pennsylvania, citing Commonwealth v. Lark, 518 Pa. 290 (1988), stated: Where the defendant moves to server offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must therefore determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses. All of the offenses in the within case have been consolidated in a single information. We find that the count of criminal homicide would not be admissible in a -13- 99-0426 CRIMINAL TERM separate trial on the counts of theft and receiving stolen property or visa versa. That alone requires severance of those two gun charges from the count of criminal homicide. However, even if the evidence of those offenses would be admissible in a separate trial for the other, and the evidence was capable of separation by a jury, we find that defendant would be unduly prejudiced by a consolidation of the counts of theft and receiving stolen property with the count of criminal homicide. Those are separate and distinct crimes that are alleged to have occurred months before the commission of the criminal homicide. The counts charging illegally possessing and using a firearm and illegally carrying a firearm without a license at the time when it was used to kill Veronica Vera present a different situation. The evidence of these offenses are admissible in a trial on the count of criminal homicide, and they are capable of separation by a jury so as to avoid the danger of confusion. Defendant will not be unduly prejudiced by the consolidation of these counts. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this ~.~)~r-- day of September, 1999, IT IS ORDERED: (1) The motion of defendant to suppress the statements he made to the State Police after a polygraph examination was administered, and before he was arraigned before a District Justice on the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license, IS DENIED. -14- 99-0426 CRIMINAL TERM (2) The motion of defendant to suppress all statements he made to the State Police after he was arraigned before a District Justice on the charges of illegally possessing or using a firearm and illegally carrying a firearm without a license, IS GRANTED, (3) The motion of defendant to sever the counts of theft and receiving stolen property from the count of criminal homicide, IS GRANTED. (4) The motion of defendant to sever the counts of illegally possessing and using a firearm and illegally carrying a firearm without a license from the count of criminal homicide, IS DENIED. Jonathan R. Birbeck, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant Edgar--. Bayl~y, J. :saa -15-