The opinion of the court was delivered by: FRANKEL
On the night of April 15, 1964, Harold Johnson, Jr., was shot in the back of the head and killed. Some 24 hours later the petitioner was charged with the slaying. Indicted for first-degree murder, he was found guilty by a jury of murder in the second degree, and sentenced to prison for the mandatory minimum term of 20 years to life. The conviction was affirmed by the New York Appellate Division, First Department, on March 7, 1967 (People v. Vanderhorst, 27 A.D.2d 904, 280 N.Y.S.2d 532), and leave to appeal to the Court of Appeals was denied on May 11, 1967. With the Chief Justice and Mr. Justice Black dissenting, the Supreme Court denied certiorari on January 15, 1968, 389 U.S. 1058, 88 S. Ct. 795, 19 L. Ed. 2d 858. Petitioner's application for habeas corpus renews in this court a contention urged in his unsuccessful appeals: that extensive confessions to the police and an assistant district attorney, critically important in the evidence for conviction, were unconstitutionally extracted from him and should therefore have been excluded by the trial court. Though the claim has thus far evoked no written opinion, it is plainly a substantial one.
Both petitioner and respondent are agreed that the state trial record is adequate to pose the constitutional problem, so that there is no occasion for an evidentiary hearing in this court. After close study of that record, the court joins in this initial premise of the parties. Focusing upon the aspects of present concern, the relevant circumstances may be summarized as follows:
Because it was clear in advance that petitioner's incriminating admissions were to play a part (and, as it developed, a key part) in the prosecution's case, the trial court conducted a pre-trial " Huntley " hearing as required by People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), pursuant to the ruling in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Three New York City detectives were called by petitioner to testify in this hearing. Omitting here some small discrepancies, these witnesses recounted that at about 10 p.m. on April 16, 1964, the day after the shooting, two of them went, with an officer of the private guard agency which employed petitioner (and had employed the deceased), to a supermarket in Brooklyn where petitioner was stationed at the time. They "asked" petitioner to accompany them back to the station house, and he consented. Following their arrival at the precinct at about 11 p.m., they said, they proceeded to question petitioner. By about 11:30 p.m., after some initial denials, petitioner admitted that he had fired the fatal shot, from the gun of the deceased. According to the police officers, his narrative to them described the tragedy as an accident, resulting from his effort, at Johnson's suggestion, to insert cartridges of too large a calibre into the weapon. These admissions also told, however, that petitioner, after the shooting, had taken $90 from the dead man's pocket, and then fled to the home of a girlfriend where he was later shown to have made further admissions of the shooting.
At around 12:30 a.m. on April 17, after the foregoing statements to the police, petitioner went with two of the detectives to his apartment, where he took from a dresser drawer and gave them what was later to be identified (and what the police said petitioner acknowledged) as the murder weapon. He was then brought back to the police station and questioned some more. After repeating and amplifying his earlier admissions, he was booked and (at about 1:30 a.m.) placed in a cell until 3 a.m., when an assistant district attorney arrived to question him. The stenographically recorded transcript of that interrogation is at the heart of the problem in this proceeding.
Neither the police nor the assistant district attorney advised petitioner of his right to remain silent or of his right to consult a lawyer. The detectives denied, however, that (as petitioner later asserted on the trial) he had asked for counsel or that he was beaten or otherwise coerced into making what amounted ultimately to a substantially full confession.
In the face of the police testimony, and without putting petitioner on the stand in the Huntley hearing, defense counsel urged that the admissions to the police and the assistant district attorney should be excluded (1) as the involuntary products of beatings, (2) because petitioner had asked in vain to see a lawyer, and (3) because he had not been advised of his constitutional rights. The trial judge rejected these contentions (Tr. 87-91).
He found on the evidence then before him that petitioner had incriminated himself voluntarily; that he had not been beaten or otherwise forced to confess; that no promises or threats had been made (Tr. 90). He also found that petitioner had been neither advised nor misled as to his constitutional rights (Tr. 90):
"* * * The defendant was not informed that he had a right to counsel or that he had a right not to answer questions. Neither was he informed to the contrary."
Upon these preliminary findings of voluntariness, the trial judge concluded (Tr. 91) that, "assuming that a proper foundation is laid for such statements on the trial, they will be admissible."
When he announced this pre-trial ruling, the judge had before him only a partial account of the contents of the admissions in question. Concerned, as trial judges are in such situations, with the factors that might affect voluntariness or other constitutional criteria of admissibility, he had no apparent occasion to hear in detail the substance of the allegedly incriminating conversations. Thus, he heard somewhat sketchily what were later amplified at the trial as petitioner's admissions to the detectives. However - and this is a matter of importance for present purposes - there was no account in the pre-trial hearing of what was contained in the question-and-answer transcript of the interrogation by the assistant district attorney beginning at about 3 a.m. on April 17, 1964 (see Tr. 90). It was not until the trial that either defense counsel or the judge saw or heard that transcript. Toward the end of the fifth trial day it was read into evidence by the stenographer who had taken and transcribed it. And it is that point which presents, in a few lines, the central and troublesome difficulty which was at the core of petitioner's appeals and is similarly pressed here as fatal to his conviction.
The transcript, covering about 15 pages of the trial record, consisted of some 138 questions and answers. The nub of our concern appears at the outset, in the third and fourth of the questions and answers. To set the immediate context and quote from the beginning of the questioning, emphasizing the crucial lines, the initial five questions and answers read as follows (Tr. 459):
"Q * * * I am an assistant district attorney. I am going to ask you some questions and I assume that your answers will be truthful. Is that correct?
"Q And that your answers will be voluntary ...