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July 21, 1967

UNITED STATES of America ex rel. John J. SCHAEDEL, Petitioner,
Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent

The opinion of the court was delivered by: PALMIERI

PALMIERI, District Judge.

 The petitioner was convicted by verdict of a jury of five counts of grand larceny in the first degree and sentenced on June 23, 1964, as a second felony offender to concurrent terms of five to ten years in state prison on each Court. The conviction was affirmed on appeal, 23 A.D.2d 967, 260 N.Y.S.2d 601 (2d Dep't 1965), and on June 25, 1965, leave to appeal to the New York Court of Appeals was denied.

 Petitioner sought a writ of error coram nobis in the County Court of Suffolk, New York, which was denied without a hearing on January 25, 1966. The denial was affirmed by the Appellate Division, Second Department, and on January 12, 1967, permission to appeal to the Court of Appeals of the State of New York was denied. Petitioner has exhausted his available state remedies.

 Petitioner's Allegations

 The petitioner contends that his oral confession introduced as evidence at the trial, by way of testimony of police officers who were present at the initial questioning of the petitioner, was a coerced and involuntary statement, the use of which constituted a denial of the due process of law guaranteed by the 14th Amendment. Petitioner further complains that the police refused to permit him to communicate with his lawyer during the questioning and immediately thereafter, and that the police did not inform petitioner, prior to his making the inculpatory statements, that he had a right under the 5th Amendment to remain silent.

 Substantially similar allegations were contained in a prior application petitioner made to this Court. That application was denied in an opinion by Judge Frankel, 66 Civ. 930 (S.D.N.Y.1966). Petitioner's contention that the introduction of his confession at the trial vitiated his conviction under the doctrine of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), was rejected in that opinion because of the Supreme Court's ruling that Escobedo was not to be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). This Court accepts as valid the opinion of Judge Frankel and further points out that Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), also relied on by the petitioner, is not applied retroactively either. Johnson v. State of New Jersey, supra. The Supreme Court ruled that the Escobedo and Miranda decisions should apply only to a case in which the trial has commenced after the decisions were announced, June 22, 1964, and June 13, 1966, respectively. Johnson v. State of New Jersey, supra, 384 U.S. at 733-735, 86 S. Ct. 1772. Petitioner's trial began on April 22, 1964.

 There remains to be considered by this Court only petitioner's allegation that his oral confession, introduced into evidence at trial, was involuntary. Johnson v. State of New Jersey, supra at 732, 86 S. Ct. 1772.

 The Trial

 The uncontradicted evidence at trial indicated that the petitioner was called to his employer's office, where he was questioned by police officers for one and a half to two hours, that he admitted that he had been padding his employer's payroll and keeping the additional money for himself, and that he made these admissions within one half hour after the interrogation started. The police officers' testimony that the petitioner did not ask for an attorney until after he had made the above admissions, and that although they carried revolvers these were never displayed to the petitioner, was also uncontradicted at the trial.

 Introduction of an involuntary confession was considered a denial of due process long before this petitioner's trial. See, e.g., Lisenba v. People of State of California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941); Brown v. State of Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936). Nevertheless, although petitioner's trial counsel elicited testimony on cross-examination of the prosecution's witnesses concerning the circumstances surrounding the petitioner's oral confession (T. pp. 472-76, 524-36), no objection was made to the introduction by the prosecution of evidence of petitioner's oral confession (T. pp. 469-72, 521-24). No motion was ever made to strike such evidence from the record or to direct the jury to disregard it.

 At the close of the prosecution's case, petitioner's counsel moved to dismiss the action "on the ground that the People have failed to prove a prima facie case" (T. p. 540). After considerable argument by petitioner's counsel, the Court called attention "to the uncontradicted testimony of the Police Officers that the defendant admitted to inserting additional hours on time cards." (T. p. 549). In response, petitioner's counsel noted Section 395 of the Code of Criminal Procedure (which describes when confessions of a defendant may be used against him). The Court then said to petitioner's counsel: "I call your attention no objection was made to the testimony when it was offered, so I'll listen to no argument under 395." (T. p. 550). Nothing further was said on this point by petitioner's counsel, who went on to renew his objections to other testimony (not concerning the confession) that had been admitted into evidence. During the summation by petitioner's counsel, the only reference made to the circumstances surrounding petitioner's confession was that "* * * you must take the policemen's testimony with a certain grain of salt. * * * There's a certain amount of terror that's inflicted * * * when [one] is being constantly interrogated by people who have guns in their pocket. * * *" (T. pp. 591-92). No objection was made to the statement in the prosecutor's summation to the effect that the petitioner had confessed to the police without being threatened and had in fact been very cooperative when he was questioned about the crime. (T. p. 611). The trial judge, in his charge, referred to the prosecution's reliance on the petitioner's oral admissions and marshalled the evidence concerning those statements (T. pp. 703-06, 708-11). He did not instruct the jury on the issue of voluntariness, nor did petitioner request him to do so. In fact, at the conclusion of the charge, petitioner's counsel informed the court that he did not wish to take any exceptions or make any requests (T. p. 715).

 By-Passing of State Remedies

 The application for a writ of habeas corpus must be denied because of the failure of petitioner or his counsel, either at trial or on appeal, to object to the prosecution's reliance upon the petitioner's allegedly involuntary oral confession. A disposition such as this, based on the by-passing of state procedures, must take into consideration the language of Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 849, 9 L. Ed. 2d 837 (1963):

"* * * We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in ...

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