ALBANY – A suspect’s conviction and 18-year sentence should stand, despite the “appalling” conduct of a sheriff’s deputy in slipping a religious pamphlet into the defendant’s pocket during his trial urging him to confess, a unanimous upstate appellate court ruled Thursday.
The court credited the trial judge, Albany Supreme Court Justice Dan Lamont, with performing the required colloquy with defendant Charlie Robles when the pamphlet came to light to make sure Robles was not acting under pressure from the government and understood his decision not to testify in his own defense.
Writing for the Appellate Division, Third Department, panel in People v. Robles, 105103, Presiding Justice Karen Peters (See Profile) said Lamont’s colloquy was “both adequate to safeguard the sanctity of the defendant’s fundamental right to testify and sufficient to ensure that his ultimate decision not to testify” reflected his own free will.
“Thus, despite the unusual —and perhaps unprecedented—circumstances presented in this case, we cannot say that defendant’s right to a fair trial was compromised or that reversal is otherwise warranted on the basis of the indefensible conduct of the deputy sheriff,” Peters wrote.
The decision rejected Robles’ contention that the deputy’s action represented intolerable interference in his trial and warranted reversal of his convictions for first-degree robbery and first-degree burglary and a new trial (NYLJ, Nov. 18, 2013).
According to the Third Department panel, the pamphlet said, “Yes, you have the right to remain silent. You have the right to remain in your sins. But please don’t. Your conscience testifies against you. Confess your sins” or “spend eternity in a prison called hell.”
The pamphlet was prepared by the Ten-Four ministries, a Christian group that seeks to minister to members of the law enforcement community, according to Thursday’s ruling.
The deputy put the pamphlet into Robles’ back pocket when he was helping transport the defendant from the courthouse to the county jail following the second day of Robles’ trial.
The judges said that while the pamphlet was indeed an attempt by the deputy to affect Robles’ “free and unhampered decision” about whether to testify, Lamont properly carried out his “duty” by directly discussing with the defendant his decision, as laid out in United States v. Hung Thien Ly, 646 F.3d 1307 (11th Cir. 2011), and Ortega v. O’Leary, 843 F.2d 258 (7th Cir. 1988).
Among the appropriate questions the court said Lamont then asked Robles, without jurors present, was, “Do you understand that the decision as to whether you testify as a witness in your own behalf at this trial or don’t testify as a witness in your own behalf at this trial is your decision and your decision alone?”
“I understand, Your Honor,” Robles replied.
Lamont also asked, “If you don’t testify, can we be assured that you’ve made that decision and if you testify, can we be assured that it was you that made the decision?”
“That’s correct,” Robles responded.
Lamont did not hold a hearing on the request by Robles’ public defender at trial, Freddie Santiago, to declare a mistrial based on his client being given the pamphlet by the deputy.
Noting that jurors did not know about the deputy’s actions, Lamont said in court—also outside the presence of jurors—that it should not “affect the defendant one iota.”
“If he didn’t do this [burgary and robbery] it certainly shouldn’t affect him at all,” the judge said. “And if he did do this, he has the right to remain silent and that shouldn’t affect him one iota either.”
Robles did not testify. He was convicted of robbing a 91-year-old woman at knife point in her home in Albany and taking more than $30,000 in cash. Robles, 42, is serving an 18-year state prison sentence.
Attorney Matthew Hug of Troy, Robles’ appeals lawyer, said he will seek to appeal the Third Department’s ruling to the state Court of Appeals.
“The [Third Department] court found that the deputy’s conduct was ‘appalling,’” Hug said in an interview. “I agree with that assessment. My disagreement is on whether or not this is something that could be cured under these circumstances. I take the position that it had an incurable impact on the trial…. There are some things that can’t be cured.”
The deputy who slipped Robles the pamphlet was not identified in submissions by either side to the Third Department or during oral arguments before the panel in November.
Albany Sheriff Craig Apple said in an interview that the deputy was reprimanded for his actions but remains on the force and is still assigned to the detail that transports defendants from the county jail to courts for appearances.
“I don’t believe he intended to do any harm,” said Apple, who declined to give the deputy’s name or his punishment except to say he was not suspended. “He is a very religious person. I understand what he was doing, but it was not right and it was in violation of our policies and procedures. He is a good deputy who understands what he did was wrong.”
Assistant Albany County District Attorney Steven Sharp represented the prosecution.
@|Joel Stahenko can be contacted at firstname.lastname@example.org.