Before Lumbard, Chief Judge, Goodrich*fn* and Friendly, Circuit Judges.
Adolph Kulikauskas, convicted in Queens County Court in 1947 of rape, kidnapping and assault with respect to two women, petitioned the District Court for the Northern District of New York for a writ of habeas corpus in 1959. He alleged that, in violation of rights guaranteed him by the Fourteenth Amendment, coerced confessions had been received at his trial, the jury had been wrongly charged as to the issue of coercion, and the alleged refusal of the committing magistrate to assign counsel or permit petitioner to speak at the magistrate's hearing had prejudiced petitioner's subsequent trial. After reviewing the record of the state court proceedings, Judge Brennan denied the application, with an opinion but without hearing. He granted a certificate of probable cause, and Kulikauskas appealed in forma pauperis. We affirm.
The crimes charged against Kulikauskas occurred on March 16 and March 20, 1947. They followed a similar pattern. Each of the women claimed she had been struck by a car, placed in it on the pretense she was being taken to a hospital for treatment, driven to a secluded spot and then assaulted and raped. Injuries in both cases and intercourse in the second were amply proved by medical testimony. As to the first incident there was no need to offer medical evidence of intercourse nor any problem of identification, since at the trial petitioner admitted sexual relations with the complainant, his story being that she had accepted a pickup and freely consented to intercourse; her injuries were not explained. He denied knowledge of the second complainant and claimed he had returned home that morning considerably earlier than the time of the incident; his wife testified to the same effect.
On May 4, 1947, petitioner was asked to come to a police station in Queens. He arrived shortly after noon, was identified by the woman involved in the March 16 incident, and was arrested. Later that day he was also identified by the victim of March 20. Shortly thereafter he confessed. Statements were taken, beginning about 4 P.M., and were signed around 6 P.M.
On the following day, petitioner was brought before a magistrate in Felony Court on a complaint relating to the March 20 incident. At the outset the magistrate told him, "You may adjourn this case, put it over for some other day so you can get the advice of friends and relatives and engage an attorney if you wish. What do you want to do?" Kulikauskas responded he had no funds for an attorney. He was told that the State did not provide counsel prior to indictment but that if he was indicted, the County Court would assign counsel if he was unable to provide his own. After considerable further colloquy along these lines, during which the magistrate inquired "Are there any questions you want to ask?", the magistrate said:
"Well, we don't provide any lawyer for you, if you can't afford a lawyer. All we do in this Court is hear the complainant. You have no chance to tell your story here. You can hear the complainant and police officer. If there are sufficient facts to justify my holding you for the Grand Jury, I will do so. If there is not, I will let you go."
The magistrate was in clear error in saying petitioner could not tell his story; N.Y.Code of Criminal Procedure, § 196, provides that he may. Petitioner said he "would like to hear the complainant." She testified substantially as she later did at the trial; the arresting officer corroborated her story as to her complaint to the police and testified to defendant's admissions at the police station.
The magistrate held petitioner for action by the grand jury, which indicted him for rape, kidnapping and assault as to both episodes. After indictment Kulikauskas, then represented by counsel, was taken before Judge Farrell in County Court to plead; neither he nor his counsel complained of any mistreatment by the police.
At trial petitioner's counsel objected to the admission of the two signed confessions. Kulikauskas testified that before confessing he had been held by two officers while a third kicked him for about an hour, and that when he was unable to walk and was willing to admit anything, he was taken before an Assistant District Attorney and his answers recorded for signature. He testified also that he complained to the prison physician of mistreatment by the police and requested, but did not receive, medical treatment or an examination, the doctor merely giving him pills. The claims of violence were denied by the officers, the Assistant District Attorney, and the stenographer who had taken the statements, the two latter also testifying to absence of complaint by petitioner. The physician, who had visited the prison on May 5, denied that petitioner had requested treatment on that day or later; his records showed that petitioner's only complaints were of headache and constipation, for which the doctor administered pills.
On cross-examination the prosecutor elicited, without objection, that petitioner had made no complaint about beatings to the Assistant District Attorney, the committing magistrate, or the judge before whom his plea was taken. Defense counsel made no attempt to show why Kulikauskas had remained silent on any of these occasions. At the conclusion of redirect examination, the trial judge asked to see the minutes of the hearing before the magistrate. Counsel then requested and received permission to read aloud from these minutes as much as he wished. He read a substantial portion but not the magistrate's remark "You have no chance to tell your story here."
After fairly reciting the evidence as to coercion of the confessions, the trial judge told the jury:
"He stated he made no complaint to the Magistrate before whom he was arraigned the next day in the Felony Court or the day after, he made no complaint about police brutality, made no complaint to Judge Farrell about police brutality.
"You are to consider all that evidence in determining whether or not this confession is the voluntary act of this defendant or ...