Before LUMBARD, Chief Judge, and MOORE and MARSHALL, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
Appellant, under sentence of death as a result of a judgment of conviction of first degree murder in the County Court of Kings County, New York, appeals from an order of the District Court for the Southern District of New York, denying his application for a writ of habeas corpus. State remedies have been exhausted.
The primary appellate question is whether appellant was deprived of his constitutional right to a fair trial because of the introduction into evidence of a statement by him which was stenographically transcribed, sometimes herein referred to as a confession. The answer turns upon the circumstances under which it was given. We find no such deprivation and affirm the order.
In the early morning of June 14, 1960, appellant while escaping from the scene of an armed robbery committed by him shot and killed a police officer. He was wounded by the police officer in the exchange of gunfire and sought hospitalization. Shortly after admission to the hospital while in the X-ray room and at approximately 2:00 A.M., appellant said to a detective, "I shot the colored cop. I got the drop on him." At 3:55 A.M., an assistant district attorney took a question and answer statement from appellant, immediately after appellant had been given "demerol", a drug with pain alleviating properties, as a pre-anesthetic, pre-operative procedure. There was medical testimony that except perhaps in the case of children demerol "does not manifest its action" until about fifteen minutes after injection. The defense offered no proof contradicting the prosecution's medical witness on this point. Nor was there any dispute that the questioning of appellant lasted no more than about five minutes.
On the trial appellant was represented by an attorney, a former judge, experienced in the defense of criminal cases. The statement (Exhibit 14) was offered in evidence during the testimony of a stenographer employed by the District Attorney of Kings County. The trial record reads: "The Court: Any objection? Mr. Healy [appellant's counsel], No." The Court inquired as to whether appellant's counsel had a copy of the statement and was advised by counsel in the affirmative. The statement contained appellant's version of the events leading up to the shooting. Appellant said in substance that in the early morning he went to a hotel with a woman to get a room but not with an original intent to do a "stickup"; that when he was recognized by the desk clerk he decided to rob her which at gun-point he proceeded to do; that he herded the clerk and others into a room; that on the street he was accosted by a police officer who insisted that appellant accompany him; that he threw the officer to the ground; that the officer drew his gun but appellant "got mine out first" and in the firing he (appellant) "beat him to it." On cross-examination appellant's counsel brought out the five-minute duration (3:55 A.M. to 4:00 A.M.) of the statement and appellant's claim during that period that he could not go on.
Appellant took the stand in his own defense. He gave a detailed account of the events of the day, his drinking, his going to the hotel with the woman, the robbery, his struggle with the police officer, the officer reaching for his gun but appellant getting his gun out first, the exchange of shots and the hospitalization. Appellant claimed that, although they gave him some water once, he was told that he could not have any more unless he answered questions.
Upon rebuttal, the prosecution offered medical testimony that demerol would not take effect for about fifteen minutes. In addition, testimony was given by two hospital attendants present during the period involved that appellant was not told that water would be refused unless he answered questions. Their testimony was that they told him that hospital procedure required that they not give water to pre-operative patients [the operation commenced at 5:00 A.M.]. The events at trial indicate that it was the decision of defendant's skilled counsel (1) not to object to the introduction of appellant's statement and (2) to have appellant testify in his own behalf. The prosecution had the right "to rely on the decisions made by counsel and the defendant himself." (United States v. Richmond, 2 Cir., 1961, [Reid v. Richmond] 295 F.2d 83, 90, rehearing denied, October 11, 1961, certiorari denied, 368 U.S. 948, 82 S. Ct. 390, 7 L. Ed. 2d 344, rehearing denied 368 U.S. 979, 82 S. Ct. 485, 7 L. Ed. 2d 441, leave to file second petition for rehearing denied, 369 U.S. 881, 82 S. Ct. 1145, 8 L. Ed. 2d 285 (1962)).
Despite the admission of appellant's statement without obejction, the trial court, in effect, preserved for appellant the right to attack it because after appellant had rested and during rebuttal the trial court said, "Judge Healy raised the point in cross-examination that sedation of a kind was administered to the patient. * * * And therefore he is going to contend and he does now that the confession hasn't the weight the law requires. Is that your purpose?" To this counsel said, "That's correct".
The prosecution then called witnesses limited to this point, as abovementioned, denied that water was refused unless questions were answered.
The summation of appellant's counsel clearly discloses his trial strategy both as to his unwillingness to object to the statement and as to his calling appellant to the stand. He must have been convinced as a result of his almost fifty years of experience that he would serve his client best if he did "not ask you [the jury] to acquit Jackson" but to argue it "on a proposition of law, that any guilt that is his is murder in the second degree, or manslaughter * * *." In summary, his approach was to convince the jury, if he could, that the killing was "without the premeditation" (murder in the second degree) or was manslaughter "where there is no need for premeditation or deliberation or intent * * *." Counsel's "theory of defense" against felony murder was to separate the felony (robbery), which he argued had terminated, from the killing during appellant's attempt to escape. This, counsel argued, was "the crux of the defense". The balance of the summation as far as material to this point was devoted to a thorough analysis of the facts designed to convince the jury that the killing was without premeditation and deliberation. Counsel also attempted to sway the jury to his "unpremeditated" theory in his explanation that he "wanted you [the jury] to hear everything in the case," and appellant to have "his day in court". By calling him he was able to bring out appellant's drinking which he argued bore upon his mind and intent at the time of the shooting. The final plea to the jury was that when "the query is propounded to you as to how you find the defendant Jackson, guilty or not guilty, you will say either guilty of murder in the second degree or manslaughter in the first degree."
The trial court in a lengthy charge instructed the jury with clarity and accuracy as to the necessary elements of murder, first (common law) and second degrees, manslaughter, first and second degrees, and felony murder. As to the statement or confession, the court charged that even if the statement were found to be made by appellant and to be true and accurate "before you may use it, the law still says you must find that it is voluntary, and the prosecution has the burden of proving that it was a voluntary confession." The court then instructed the jury as to their fact-finding function with respect to the three elements (1) whether the statement was made by appellant; (2) whether it was voluntary; and (3) whether it was true and accurate, adding that if it were found to be involuntary that they were to exclude it from the case. Only one exception to the court's charge was taken by appellant's counsel, and this was unrelated to appellant's statement. Of appellant's requests to charge, counsel asked that the jury be instructed that in determining whether the statement was voluntary they had a right to take into consideration appellant's physical condition. The court replied, "I did exactly that", and referred to his charge on this point which reads:
"Jackson testified he was shot. He was under a sedative. He said he was refused water unless he answered the questions as they wanted him to answer them. He said he remembers some questions and answers, and denied others. He had no recollection as to some questions and answers. He said that the statement which the District Attorney claims to be a confession was obtained from him in violation of law."
The jury returned a verdict of first degree murder with no recommendation. In the New York Court of Appeals, the judgment of conviction was affirmed without opinion (Jackson v. New York, 10 N.Y.2d 780, 219 N.Y.S.2d 621, 177 N.E.2d 59); motion for reargument denied (10 N.Y.2d 885, 223 N.Y.S.2d 1027, 179 N.E.2d 717); motion to amend the remittitur granted to show that questions under the Constitution of the United States were passed upon, viz., possible coercion and physical condition at the time of taking the statement (People v. Jackson, 10 N.Y.2d 816, 221 N.Y.S.2d 521, 178 N.E.2d 234); certiorari was denied by the Supreme Court (368 U.S. 949, 82 S. Ct. 390, 7 L. Ed. 2d 344) as was a further motion for reargument in the New York Court of ...