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United States v. Fay

decided: April 29, 1966.


Lumbard, Chief Judge, and Medina and Waterman, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge.

The principal question for decision is whether the use of Christopher Romano's post-indictment statements made to a police officer and to an assistant district attorney so infected his 1953 New York trial and conviction with federal constitutional error that habeas corpus relief is warranted. The District Court for the Southern District of New York, Murphy, J., granted the writ and directed Romano's discharge or a prompt retrial. We reverse and remand with instructions to dismiss Romano's petition. We hold that the only infirmity in Romano's questioning and subsequent trial was an inconsistency with two Supreme Court decisions handed down more than ten years later, Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and that those decisions should not be retrospectively applied to void Romano's conviction.

On January 28, 1950, Mrs. Margaret Hughes reported to New York City police that she had been beaten and raped the previous night at her home by a knifewielding intruder known to her as "Chris." The description of this assailant given by Mrs. Hughes and by Eunice Lawlor, a sixteen-year-old baby sitter present during the alleged rape, led the investigating officers to suspect Romano, whom they had known previously. In the course of a fruitless three-day search for Romano, the police learned that he had left for Michigan. On February 10, 1950, an indictment was returned charging him with assault and rape.

In Michigan, Romano was convicted of larceny in May of 1950 and spent until March 1953 in a Michigan prison. Upon his release, Romano was brought by train back to New York and tried under both counts of the February 1950 indictment. He was convicted of first degree rape and second degree assault and given a ten to twenty-year sentence as a multiple felon on September 22, 1953.

At the trial, Mrs. Hughes described the circumstances surrounding the alleged rape, but she failed to identify Romano, who had lost considerable weight while in Michigan. However, eye-witness Eunice Lawlor corroborated Mrs. Hughes' testimony and made a positive identification. The prosecution then called Detective John A. Tracy, one of the officers who had brought Romano from Michigan to New York. Tracy testified, without objection, to a conversation with Romano during the train ride. He stated that, in response to questions "pertaining to the incident, the complaint of 1950," Romano had replied, "Can you rape a prostitute?" and then had asked "whether or not the withholding of the two dollar payment could be considered a rape." Upon cross-examination, Detective Tracy conceded that "at no time did Romano ever admit he raped Mrs. Hughes."

The prosecution's final witness was Barney Moss, a stenographer who read before the jury a statement made by Romano in response to questioning by Assistant District Attorney Lawrence J. Peltin after Romano arrived in New York from Michigan.*fn1 In this statement, Romano had admitted his presence in Mrs. Hughes' room on the night in question but had denied committing the rape and had refused to answer questions concerning the details of his encounter with Mrs. Hughes.

The defense consisted solely of Romano's own protracted testimony. He described in detail his version of the events on January 27 and 28, 1950. He admitted his presence in Mrs. Hughes' apartment on that night, but he denied that they had had intercourse or that he had beaten her other than in self-defense. On cross-examination, he admitted making the statements attributed to him by Detective Tracy, but he contended that he and Tracy had not been discussing Mrs. Hughes' case at that time.

The prosecutor also attempted to use Romano's statement to Peltin for impeachment purposes on cross-examination by asking Romano why he had refused to answer Peltin's questions and yet had told the jury an exculpatory version of the events in question.*fn2 Romano replied: "When I got questioned by Mr. Peltin I asked for my lawyer to be present, and he did not want my lawyer to be present. So, during the course of them questions I was saying, 'No,' to every question that I thought shouldn't be answered at that time." Romano also explained that he had said nothing inculpatory to Peltin. "I admitted I was in the room. I didn't admit anything else, or say anything, yes or no, there, to them questions."

In this petition for habeas corpus relief, Romano alleges that his postindictment statements to Tracy and Peltin were involuntary and that they were taken in violation of his Sixth Amendment right to counsel. There can be little doubt that the claim of involuntariness, under any standard, is frivolous. At trial, Romano admitted that he made the statements and that they were substantially true as related to the jury. No circumstances in any way supporting an inference of coercion were shown, and indeed Romano's counsel conceded the voluntariness of these statements during oral argument to this court.

As Romano at all times stoutly denied that he had committed the rape and assault for which he was convicted, we are dealing here not with confessions in the common sense but rather with arguably inculpatory comments and references to the circumstances surrounding the crime. According to the district court, the only infirmity in the conviction which it set aside lies in its determination that, had this criminal trial occurred after Massiah v. United States and Escobedo v. State of Illinois, these statements, if objected to, would have been excluded.*fn3 As those decisions were handed down more than ten years after Romano's trial, there is squarely presented the question whether they should be given retroactive application under the integrated standards evolved by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), and described in detail in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (Jan. 19, 1966).


A threshold question in any federal habeas corpus case is whether the petitioner has exhausted his state remedies. There is no point in recounting Romano's many applications for state and federal post-conviction relief prior to the instant petition. Suffice it to say that we agree with Judge Murphy that Romano's most recent unsuccessful application to the New York courts for coram nobis relief raised substantially the same issues that are presented here. See 21 App.Div.2d 754, 251 N.Y.S.2d 909, 21 A.D.2d 755, leave to appeal denied, Ct.App., July 13, 1964.

The exhaustion requirement is therefore satisfied, see, e.g., Brown v. Allen, 344 U.S. 443, 502, 73 S. Ct. 397, 97 L. Ed. 469 (1953), unless, as the State urges, Romano should be compelled to pursue New York's new post-conviction procedure for testing the voluntariness of confessions, see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), as we held in United States ex rel. Martin v. McMann, 348 F.2d 896 (1965). Judge Murphy rejected this contention because he found the allegations of involuntariness conclusory.

Despite our conclusion that Romano's involuntariness claim is frivolous and that his hope for relief lies in his Sixth Amendment contentions, we would be strongly disposed to remand his petition for a Huntley hearing as a matter of comity, see United States ex rel. Martin v. McMann, supra, except for two factors: first, it is now clear that New York would deny coram nobis relief for Romano's right to counsel claims because he raised no proper objection at trial, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), approving People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962);*fn4 and second, we find no unresolved factual questions related to the Sixth Amendment claims raised here that would be developed at a Huntley hearing. Thus, we conclude that Romano has adequately exhausted his state remedies.


Petitioner argues that the Supreme Court's decision in Lyles v. Beto, 379 U.S. 648, 85 S. Ct. 613, 13 L. Ed. 2d 552 (1965), precludes this court from holding that Massiah is not retroactive. The Court in Lyles remanded to the Fifth Circuit "for reconsideration in light of Massiah v. United States" a habeas corpus petition involving a pre-Massiah conviction. But we do not think that the Supreme Court meant to foreclose "consideration" of the retroactivity question. This seems abundantly clear from the Court's grant of certiorari in Johnson v. New Jersey, 382 U.S. 925, 86 S. Ct. 318, 15 L. Ed. 2d 339 (Nov. 23, 1965), a case presently under consideration in which retroactivity is the principal issue.

In Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), the Supreme Court held that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), would not be applied retroactively, as this court had held in United States ex rel. Angelet v. Fay, 333 F.2d 12 (1964), aff'd, 381 U.S. 654, 85 S. Ct. 1750, 14 L. Ed. 2d 623 (1965). Subsequent to oral argument in this case, the Court held that the doctrine of Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), which bars adverse comment by the prosecutor or trial judge on a defendant's failure to testify, also would not be given retroactive*fn5 effect. Tehan v. United States ex rel. Shott, supra.

In its Linkletter and Tehan decisions, the Court emphasized that the retroactivity of a particular rule or decision is to be decided by "weigh[ing] the merits and demerits in each case by looking to the prior history of the rule in question, its purposes and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, 381 U.S. at 629, 85 S. Ct. at 1738. In determining the retroactivity of a specific constitutional doctrine affecting the administration of criminal justice, the inquiry must be directed at the purposes of the new doctrine, the reliance placed by law enforcement officials on previous law, and the effect on the administration of justice of retroactive application. Id. at 636, 85 S. Ct. 1731. Thus, every element bearing on the three-fold inquiry is to be carefully evaluated.

A. The Purposes Behind Escobedo and Massiah

In our opinion, the most important factor in our decision is an assessment of the purposes of the Escobedo and Massiah*fn6 doctrines and the effect of retroactive application upon the achievement of those purposes. In assessing the "complex of values" underlying these decisions, the inquiry must be focused on whether the new doctrine was aimed at correcting influences that "infect a criminal proceeding with the clear danger of convicting the innocent." Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453. As Mr. Justice Clark pointed out, "in each of the three areas in which we have applied our rule retrospectively the principle that we applied went to the fairness of the trial -- the very integrity of the fact-finding process." Linkletter v. Walker, 381 U.S. at 639, 85 S. Ct. at 1743. See also United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 310 n. 3 (2 Cir.) cert. denied, 377 U.S. 998, 84 S. Ct. 1921, 12 L. Ed. 2d 1048 (1964); Mishkin, supra note 5, at 79-86.

There can be little doubt that the doctrine excluding involuntary confessions and admissions bears a clear relationship to the integrity of the fact-finding process. Although a confession, like any statement against interest, is normally a most reliable form of evidence, see United States v. Cone, 354 F.2d 119, 126 n. 19 (2 Cir. 1965), it is of doubtful reliability when the defendant was physically or psychologically coerced into making it. Consequently, as the Supreme Court stated in both Linkletter and Tehan, the rule excluding involuntary statements is given retroactive application. E.g., Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

On the other hand, the Massiah and Escobedo doctrines are not aimed at rendering confessions inadmissible because they are factually unreliable. Rather, those decisions operate to exclude "the use of evidence which is relevant, reliable and highly probative of * * * whether the accused committed the act with which he is charged." Massiah v. United States, 377 U.S. at 208, 84 S. Ct. at 1204 (Mr. Justice White, dissenting). It has been asserted that these decisions are in part aimed at finding a workable substitute for the difficult inquiry into involuntariness. However, such a substitution, which on its face looks primarily to the future, need not be applied retroactively when, given the previous broad concept of involuntariness, the new rule seems unlikely to result in any net increase in the reliability of the guilt-determining process. See Mishkin, supra note 5, at 83-86, 96-97. Moreover, even if Escobedo and Massiah are held nonretroactive, it will remain open to habeas corpus petitioners to allege and prove that their convictions were tainted by the use of involuntary and hence potentially unreliable confessions.

Massiah and Escobedo are constitutionally grounded on the Sixth Amendment's guarantee that an "accused shall enjoy the right * * * to have the Assistance of Counsel for his defense." When the right to counsel is denied during a judicial proceeding, there is a substantial danger that the guilt-determining process is thereby made less reliable. The marshalling and presentation of evidence, the cross-examination of witnesses, the summation to a jury all require the skills of a lawyer; when an untrained defendant must oppose alone the experienced presentation of a prosecutor acting as advocate, the balance is tipped sharply against the defense for reasons other than the truth of the prosecution's case. Thus, the salutary doctrine of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), was given retroactive effect by this court in United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2 Cir.), cert. denied, 377 U.S. 998, 84 S. Ct. 1921, 12 L. Ed. 2d 1048 (1964). See also Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L. Ed. 2d 650 (1964).

But these same dangers are not present when the defendant is questioned by the police. To be sure, the defendant is often at a tactical disadvantage in the "battle of wits" between a skilled interrogator and one who attempts to obscure or conceal his guilt. But the confessions or admissions that are obtained through normal and noncoercive police questioning are not unreliable and the search for truth is not hampered by their admission during a trial at which the defendant is represented by counsel. Thus, we find the Sixth Amendment arguments for retroactive application of Massiah and Escobedo far weaker than the arguments which led us to apply Gideon retroactively.

In our opinion, the major underlying purposes of Escobedo and Massiah are not related to the integrity of the fact-finding process of a criminal prosecution. Rather, those decisions reflect current notions of the proper relationship between the accused and the prosecution, indeed, between the individual and the State. Escobedo and Massiah oppose the unrestricted use of even reliable confessions as an encroachment upon the privilege against self-incrimination, which many feel can only be effectively exercised at the pre-trial stage in the presence of a lawyer representing the accused; these decisions are an affirmation of the prosecution's moral duty to obtain convictions in contested cases by extrinsic evidence rather than by the words of the defendant.

In large part, therefore, Escobedo and Massiah seem designed to reduce the role that confessions play in securing convictions by altering the balance between appropriate and inappropriate police questioning. Although the ultimate scope of these decisions is as yet far from clear, if applicable to exclude statements such as those made in this case, we can only conclude that their basic purposes, like the purposes behind the privilege against self-incrimination itself, "do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load.'" Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. at 464.

B. The Reliance Factor

For many years prior and subsequent to Romano's conviction, the Supreme Court had consistently held that confessions and inculpatory statements could be properly admitted during State trials unless it was shown that they were involuntarily given. E.g., Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Spano v. People of State of New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Gallegos v. State of Nebraska, 342 U.S. 55, 72 S. Ct. 141, 96 L. Ed. 86 (1951); Brown v. State of Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936). Although the standards with respect to when a statement was given in circumstances so coercive as to render it involuntary were stiffened during this period, voluntariness remained the sole constitutional criterion applied in State cases.

As the federal courts became more and more aware of the necessarily coercive effects of prolonged, secret interrogation, the presence or absence of counsel at an interrogation session became an increasingly significant factor in assessing voluntariness. Compare Haynes v. State of Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963), with Stroble v. State of California, 343 U.S. 181, 72 S. Ct. 599, 96 L. Ed. 872 (1952). However, prior to the prophylactic rule in Massiah, such absence alone, even in rather "distasteful" circumstances, was not enough to render any voluntary statements elicited constitutionally inadmissible. See Cicenia v. LaGay, 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958); Crooker v. State of California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958). There were of course proponents of a contrary rule during this period. But, unlike the case of illegally seized evidence presented in Mapp, it was not the majority view in 1953 that postindictment questioning in the absence of counsel was contrary to modern concepts for fair treatment of those accused of crime.*fn7 Thus, as in Tehan, the reliance placed by law enforcement officials on Supreme Court decisions "was of unquestioned legitimacy as compared to the reliance of the States upon the doctrine of Wolf v. Colorado [338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782], considered in Linkletter as an important factor militating against the retroactive application of Mapp." 382 U.S. 406, 86 S. Ct. at 466.

The effect of this reliance is graphically illustrated in this case. The State's case hinged upon whether Mrs. Hughes or Eunice Lawlor could identify Romano as the assailant; Eunice Lawlor's testimony was an insuperable blow to the defense.*fn8 Even assuming that Tracy and Peltin would have obtained Romano's statements under the circumstances presented here had Massiah been the law in 1953, it is highly unlikely that the prosecution would have jeopardized so strong a case by offering potentially inadmissible evidence merely to impeach in a limited fashion Romano's own version of the facts. And, were the statements offered in evidence during the trial, the requirement of a timely objection would have enabled the trial judge to resolve the problem at that time.

C. The Effect of Retroactivity on the Administration of Justice

The final factor to be considered is the effect upon the administration of criminal justice of a retrospective application of Massiah and Escobedo. Of course, retroactive application of any new doctrine that restricts the conduct of police or prosecutor is disruptive to a certain extent. Therefore, in our opinion, this factor must itself be weighed from a comparative standpoint.

In Linkletter, the Court found that the retroactive exclusion of illegally seized but wholly reliable tangible evidence "would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed." 381 U.S. at 637, 85 S. Ct. at 1742. In Tehan, the Court found that only six States would be affected by retroactive application of Griffin v. State of California, but it noted that the effect in those States would be "grave indeed" because "it may fairly be assumed that there has been comment in every single trial in the courts" of those States. 382 U.S. 406, 86 S. Ct. at 466. We think that the potential impact of a retroactive application of Massiah and Escobedo surpasses that of either Mapp v. Ohio or Griffin v. State of California for a number of reasons.

It has always been standard police procedure in all American jurisdictions to question those arrested for crime so as to gain additional information, especially as to others who may be involved, and to afford the suspect an opportunity to absolve himself or confess. The importance of a reasonable questioning period has often been recognized and, as the Supreme Court has said, "if it is once admitted that questioning of suspects is permissible, whatever reasonable means are needed to make the questioning effective must also be conceded to the police." Culombe v. Connecticut, 367 U.S. at 579, 81 S. Ct. at 1866. See United States v. Cone, supra. It is natural for conscientious law enforcement officers to question with as great frequency and under circumstances as conducive to success as they think possible under existing standards. The universal use of questioning at some early opportunity magnifies the consequences of retroactive application of a radically new restriction on interrogative techniques. Although it is impossible to ascertain the number of final convictions that would be disrupted by retroactive application of these decisions,*fn9 we think that a perusal of the habeas corpus petitions which inundate our court each year makes it clear that a "wholesale release of the guilty" might well result from such an application.

Moreover, it should be remembered that Romano's case does not involve a confession, as did Massiah and Escobedo, but rather statements that proved somewhat inconsistent with the version of the circumstances surrounding the crime given by the defendant at the trial. Retroactive application will put in doubt every trial which involved any use of such statements. Thus, the disruption caused by such application is even further magnified. Given the difficulty of obtaining sufficient evidence at a retrial of those convicted long ago, we think retroactive exclusion of this type of statements would be an unwarranted burden on the judicial process.

The assessment of whether any new doctrine should be retroactively applied requires a nice balancing of many interrelated factors. Nevertheless, "the drawing of lines of distinction between different types of cases seems to us to be of the essence of the judicial process." United States ex rel. Angelet v. Fay, 333 F.2d at 21. We are not persuaded that the purposes of Massiah v. United States will be vindicated by a retroactive application of that decision to void Romano's conviction. And we find justifiable reliance on the part of New York's police, prosecution officials and courts in using Romano's wholly voluntary statements in securing his 1953 conviction. Mindful of the extraordinary strain on the administration of criminal justice that habeas corpus retroactivity of Massiah and Escobedo would cause, we can only conclude that such application would unnecessarily deter the further development of constitutional principles that reflect more enlightened concepts of the relationship between the accused and law enforcement officials throughout the various stages of the criminal prosecution. Upon consideration of all these factors, we hold that retroactive application of the Massiah and Escobedo doctrines to void Romano's conviction would not be appropriate.

The decision of the district court is reversed. The cause is remanded with instructions to dismiss Romano's petition for habeas corpus.


"Statement taken in the District Attorney's Office on March the 24th, 1953, at 1:30 P.M. Present were Detective James Holtz, Number 763 of the 48th Squad, Detective John Tracy, Number 892, of the 48th Squad, and Assistant District Attorney Lawrence J. Peltin, and myself, Barney Moss.

" By Mr. Peltin :

"Q. What is your name? A. Christopher Romano.

"Q. Where do you live? A. ...

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