The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
Petitioner, confined to Sing Sing Prison, New York, under a sentence of two years and six months to five years imposed under a judgment of conviction entered upon a jury verdict of being an accessory to a felony and of criminally possessing a pistol (as to which a suspended one-year sentence was imposed), seeks his release upon a federal writ of habeas corpus. He contends that the admission in evidence upon his trial of an incriminating statement, the principal evidence against him, violated his federally protected privilege against self-incrimination and his right to due process of law under the Fourteenth Amendment. The basic thrust of his position is that the incriminating statement was made either under a promise of immunity or, if as the state contends no immunity was promised, that it was the product of impermissible fraudulent conduct on the part of state officials.
The basic facts which led to petitioner's indictment and conviction as developed upon the trial are as follows: On July 11, 1963 one Robert Munos was shot to death and James Warga assaulted in a New York City bar and grill. Their assailant was Frank Falco. Petitioner was in the bar when Munos and Warga entered and was seen in conversation with Falco before the homicide. He had also been observed with a pistol on his person before the shooting and with a second pistol immediately after the shooting. No witness saw Falco shoot Munos.
On July 31, 1963 Warga signed a complaint accusing petitioner of acting in concert with Falco in the assault and a warrant was issued for his arrest. Some three weeks later, on August 26, 1963, while petitioner was detained in New Jersey upon an unrelated charge, Detective Pickett and Lt. Detective Fenn of the New York City Police Department, and Assistant District Attorney Hammer of New York County, sought to question him about the homicide in the office of a New Jersey prosecutor. Petitioner refused to speak to anyone except Pickett and also declined to make any statement to him until told by Pickett that the authorities needed his help, wanted his testimony, and would only use him as a witness. According to Pickett, this assurance was given after he had conferred with Assistant District Attorney Hammer. While, as hereafter discussed, there is some dispute between the latter two as to when they conferred, as well as to what transpired,
there is no dispute as to what Pickett told petitioner when he talked privately with him. In Pickett's own words:
"I told him, we had a weak case in the killing of Munos; that James Warga said he was hit in the face with the gun, and he did not actually see the shooting of Munos by Falco, and I said that anything he could give us to help us that would indict Falco we would only use it before the Grand Jury.
"* * * that if he would co-operate, with the testimony that we got from Warga, that we would get a good case against Falco, and that we would only use him as a witness.
"* * * [You] were not in the room when Falco had killed Munos so we know that you could not be charged with the homicide. Only thing, we were only going to use him as a witness."
Petitioner thereupon consented to testify against Falco before the grand jury, though not upon the trial, and made a full statement to Pickett of events at the time of, and subsequent to, the shooting in the bar and grill. He admitted that while making a phone call he saw Falco walk up to two men who had entered the bar and walk with them toward the rear of the bar. (Falco was herding Munos and Warga into the kitchen, where Munos was shot out of petitioner's presence.) Petitioner, upon completing his phone call, walked toward the kitchen and, fearing the two men were armed and might hurt Falco, pulled out his own gun. But before arriving there he heard a shot and upon entering saw that Falco had killed Munos. When Falco also threatened to kill Warga, petitioner took Falco's gun from him, warned possible witnesses "to forget what they had seen," left the bar and later threw Falco's gun, as well as his own, into the New York Harbor.
It was principally upon these incriminating admissions to Detective Pickett that the petitioner was indicted for being an accessory to a felony (after the fact),
and for criminally possessing a pistol.
Upon the trial the admissions made to Detective Pickett were received in evidence over defense objection that they had been procured by "misrepresentation and deception of a very vital fact," were not voluntary and were obtained in violation of defendant's rights under the Fourteenth Amendment.
The trial judge instructed the jury that petitioner's statements to Detective Pickett were not made under the influence of fear induced by threats or under any stipulation of immunity by the District Attorney. The instruction appears to have been based upon New York's Code of Criminal Procedure governing the admissibility of confessions.
The trial judge refused to submit the issue of the voluntariness of defendant's admissions to the jury, confining its determination only to whether the statements actually had been made by petitioner and, if so, whether they were true.
The petitioner's conviction was affirmed without opinion by the Appellate Division.
The New York Court of Appeals, by a divided court, also affirmed the judgment of conviction.
The majority upheld the trial judge's refusal to submit to the jury the voluntariness of petitioner's incriminating statements. Its ruling appears to rest on a number of grounds: first, the voluntariness of petitioner's statements was not impugned by any misrepresentation by the Assistant District Attorney or by any other deception - that, in any event, deception alone would not have rendered the confession invalid; second, no promise of immunity was made by the Assistant District Attorney in accordance with the New York Penal Law; third, Pickett had not been authorized to make any promise of immunity; fourth, Pickett's statements to petitioner contained no promise of immunity, express or implied; fifth, Pickett's remark that he was interviewing petitioner as a prospective witness in the prosecution of Falco for murdering Munos was a fact, and to the exent that the statement "we are only going to use him as a witness" could be considered a promise, it was kept, since petitioner was never charged with participating in the killing of Munos.
The majority also held that Malloy v. Hogan
did not militate against its conclusion, since "[no] whip was employed here, inasmuch as * * * [petitioner] was not led to believe that he would benefit or profit in any manner by making a statement."
The minority differed from the majority as to the meaning to be attributed to Detective Pickett's statements, and also as to the admissibility of petitioner's confession. The minority was of the view that Pickett's "statements * * * were intended to mean and must have meant to defendant that he would not be prosecuted on any charge growing out of the homicide which was being investigated."
The minority concluded not only that the promise was broken, but also as a result the petitioner was ...