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June 10, 1953


The opinion of the court was delivered by: RYAN

This petition for a writ of habeas corpus has been filed by Camilo Weston Leyra, who is presently confined in a New York State prison awaiting execution under a sentence of death pronounced against him in the County Court of Kings County, New York, after a jury verdict of guilty of Murder in the first degree, New York Penal Law, McK. Consol. Laws, c. 40, Sec. 1044. Upon appeal to the New York Court of Appeals the judgment of conviction was affirmed: three judges concurred in the majority opinion; a fourth judge concurred in result invoking the provisions of Section 542 of the New York Code of Criminal Procedure, which permits that court on appeal to give 'judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties'; and two judges, dissenting, voted to reverse, People v. Leyra, 1952, 304 N.Y. 468, 108 N.E.2d 673. Thereafter, an application was made to the United States Supreme Court for a writ of certiorari to review the questions arising under the Constitution which the New York Court of Appeals certified were presented and necessarily passed upon, to wit: 'whether the defendant was deprived of due process guaranteed by the Fifth and Fourteenth Amendments thereof in the admission into evidence of the confessions of the defendant and in the admission into evidence of the testimony given by defendant at a prior trial.' This application was denied on March 16, 1953, 345 U.S. 918, 73 S. Ct. 730 and an application for rehearing was denied on April 27, 1953, 345 U.S. 946, 73 S. Ct. 835.

In the petition now before me the petitioner urges only the claim that the confessions were improperly received in evidence.

 At a hearing held by me it appeared that no relevant facts were in dispute and no request was made that testimony be taken. I called for and received the case on appeal before the New York Court of Appeals (which contains a complete stenographic transcript of the trial), and the petition filed for a writ of certiorari.

 From the record of the proceedings heretofore had, I conclude that the petitioner is not barred from making this application for he has 'exhausted the remedies available in the courts of the State * * * by any available procedure'. Section 2254, 28 U.S.C.A. I also conclude and am satisfied from the record before me that 'the state process has given fair consideration to the issues * * *, and has resulted in a satisfactory conclusion.' Brown v. Allen, 1953, 344 U.S. 443, 463, 73 S. Ct. 397, 410, 437. I find from the record that the federal constitutional rights of petitioner have been protected, that there has been no denial of due process, and I conclude that the petition should be denied.

 It appears that a prior judgment of conviction of Murder in the first degree was reversed on appeal by the New York Court of Appeals. People v. Leyra, 1951, 302 N.Y. 353, 98 N.E.2d 553, and that the conviction under which petitioner is now imprisoned, was had on a second trial under the same indictment, which charged petitioner with the unlawful killing of his father and mother, on January 10, 1950. Reversing the conviction on the prior trial and ordering a new trial that Court found that

 'The verdict rests largely upon alleged confessions of the defendant. If they were properly received in evidence, followed by proper instructions from the court, the verdict would be clearly warranted, and we could not interfere with the execution of sentence for these brutal crimes. The conclusion is inescapable, however, that grave and prejudicial errors were committed with respect to these alleged confessions, so fundamental in nature as to require a reversal and a new trial.' 302 N.Y. at page 356-357, 98 N.E.2d at page 554.

 The evidence offered on the prior trial concerning these confessions and the circumstances under which they were made is analyzed and meticulously stated in this opinion in which all the judges of this appellate court of last resort in New York State concurred.

 Testimony was given as to statements made to a physician and psychiatrist, Dr. Max Helfand, beginning at about 5:30 p.m. on January 13, 1950, and as to later statements made to John J. Meenahan, a captain of the New York City Police Department, to William Herrschaft, an employee of petitioner's deceased father, who had known petitioner for about 10 years, and to two assistants in the office of the District Attorney of Kings County, New York.

 The court noted of Dr. Helfand that, 302 N.Y. at page 359, 98 N.E.2d at page 556:

 'This doctor, unconnected with the police department or the prosecutor's office, had been called to the police station by the District Attorney, who outlined the case to him. The doctor had also been 'briefed' by Captain Meenahan, as is manifest from the questions he asked. He agreed to talk to defendant upon condition that there be no one else in the room; he knew, however, that the room was wired and that the interview would be electrically recorded by a recording machine, which was specially set up that day. The police and the District Attorney were in the basement of the police station, where they overheard the entire interview and permitted it to continue uninterruptedly.

 'The doctor spent an hour or an hour and a half with defendant. A transcript of the recorded interview shows that he told defendant at the outset: 'I'll tell you what the purpose of my talk to you is. I want to see if I can help you.' To this defendant answered: 'Yes, Doctor.' The doctor asked him about his sinus condition and the treatment he had had, and in the course of the interview said: 'I'm your doctor."

 The court later in its opinion stated, 302 N.Y. at page 363, 98 N.E.2d at page 558:

 '* * * this court is unwilling to assent to the doctrine that representatives of the State may thus employ a relationship they established between the doctor and this defendant, which is of a character that our public policy holds privileged, Civil Practice Act, Sec. 352, in order to obtain a confession out of defendant's own mouth without warning and under the circumstances here disclosed. People v. Fernandez, supra (301 N.Y. 302, 93 N.E.2d 859); People v. Esposito, supra (287 N.Y. 389, 39 N.E.2d 925, 142 A.L.R. 956); People v. Furlong, 187 N.Y. 198, 212, 79 N.E. 978.'

 The court with reference to the other statements of petitioner wrote, 301 N.Y. at page 365, 98 N.E.2d at page 560:

 'Whether the coercion which we find implicit in defendant's statement to the doctor extended over and into the later confessions to Meenahan, Herrschaft and the assistant district attorneys remains a question of fact for determination by the jury * * *. These confessions should have been separately considered in the light of the coercion existing at the time of defendant's statement to the psychiatrist, and only if the jury were satisfied beyond a reasonable doubt that such coercion had ceased to influence defendant could they consider the later confessions. Only thus would due process of law be accorded defendant.'

 The court also noted that it was contended on behalf of petitioner that his statement had been induced by promises of leniency; as to this it wrote, 301 N.Y. at page 366, 98 N.E.2d at page 560:

 'Moreover, here again the jury should have been instructed to consider separately the later confessions, in the light of any promise that may have been made during defendant's statement to the doctor. Lyons v. Oklahoma, supra (322 U.S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481).'

 It is not in dispute that substantially the same evidence was presented on both trials as to the circumstances surrounding the making of the statements by the petitioner. It was upon this same proof that the New York Court of Appeals unanimously held, on the first appeal, that the submission of the voluntary character of these statements would result in a denial of due process only as to the statement made to Dr. Helfand. The trial judge on the second trial so ruled. The judges, dissenting from affirmance on the second appeal to the Court of Appeals, did not depart from their holding on the prior appeal that the voluntary nature of the other statements should be submitted as a factual issue to the jury for its determination and not excluded by the court as a matter of law. The two dissenting judges stated that they had concluded that the conviction should be reversed because the trial judge had 'charged unequivocally that Dr. Helfand had promised defendant, 'in order to induce him to confess,' that he would not be prosecuted for murder in the first degree, that such promise was authorized by the district attorney and that defendant confessed in reliance upon it. Consequently, as the trial court went on to charge, that confession was inadmissible as a matter of law. See Code Crim. Proc., Sec. 395.' People v. Leyra, 1952, 304 N.Y. 468, 473, 108 N.E.2d 673, 674. It was by the application of local law- the provisions of the New York Code of Criminal Procedure- that the dissenting judges concluded that the trial court's ruling 'became the law of the case' and 'that any and all other confessions to the district attorney or those associated with him in the investigation and prosecution of this very homicide, must also be deemed to have been induced by that promise, and likewise inadmissible.' That they were led to that conclusion by considerations of local law and not by a ...

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