Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Anderson, Circuit Judge (with whom Judges Waterman, Smith, Kaufman and Feinberg concur). Lumbard, Chief Judge (with whom Moore, Friendly and Hays, Circuit Judges, concur), dissenting.
ANDERSON, Circuit Judge (with whom Judges WATERMAN, SMITH, KAUFMAN and FEINBERG concur):
The judgment of the District Court is affirmed on the opinion of Judge Frankel, reported at 285 F. Supp. 233. We add only these few comments.
This case does not raise the issue of whether a defendant who fails to preserve an objection to evidence in a state court may later assert it in a habeas corpus petition, cf. Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Vanderhorst's precise claim, that his confession was involuntary because of an assistant district attorney's deliberately misleading advice concerning his right to remain silent, was not argued at trial; but it was asserted in the state court on appeal.*fn1 Judge Frankel relied on the holding of People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965), that "no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right," as authority for disposing of the simple waiver argument to clear the way for application of the deliberate by-pass test of Henry. It is our opinion that he properly did so, since the later New York case of People v. De Renzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97 (1966), modified the McLucas doctrine only in the limited situation where a defendant failed entirely to object to admission of a confession and then made affirmative use, himself, at the trial of the evidence he was disputing on appeal;*fn2 and People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968), reaffirmed the basic rule. Because a constitutional issue may be raised for the first time on appeal in New York,*fn3 and since this was done, the petition for habeas corpus was properly before the court below. See Fay v. Noia, supra.
The District Court also found the petition was properly before it because Vanderhorst did not deliberately fail to raise a specific objection to use of his confession at the trial in a calculated attempt to by-pass either the trial judge's ruling upon it or state appeal procedures. See Henry v. Mississippi, supra ; Fay v. Noia, supra ; cf. Kaufman v. United States, 394 U.S. 217, 220, n. 3, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969). While it is possible to contend after the fact that the petitioner failed to claim he was misled into abandoning his right to remain silent precisely because he intended to testify later that he in fact never confessed at all, Judge Frankel appropriately described this as "imaginative recreation of a hypothetical strategy." 285 F. Supp. at 244. Vanderhorst's trial attorney did object to admission of this confession because it was involuntary, thereby acknowledging its existence. He cited as alternate grounds the allegations of (1) beating, (2) failure to advise him of his right to counsel, and (3) failure to warn him that he might remain silent. On appeal he first raised the fourth ground, deliberately misleading advice about his right to remain silent. The record supports the District Court's conclusion that Vanderhorst's lawyer, already entwined in conflicting testimony and theories and seeking to object to a highly damaging confession on every ground available, simply overlooked an opportunity to point out the assistant district attorney's improper interpretation of "voluntary." Defendant's attorney did not know of this error at the preliminary hearing because he had not yet seen the transcript of the confession, yet as early as this he objected that the confession was involuntary. As Judge Frankel appropriately notes,
"Unlike defense counsel and the trial judge, the representatives of the State had been in possession of the transcript for many months and had been able to study at leisure its possible infirmities. Respondent's reference now to 'strategic' failures to object should remind us that the first choice of strategy is for the State. It is at least open to question how far that choice should be held to allow the proffering of illicit evidence in the hope that resulting quandaries of defense counsel may ground procedural arguments for ignoring the wrong." 285 F. Supp. at 244.
Finally, we reiterate that the interrogation of the defendant by the assistant district attorney, which did not meet federal constitutional standards of voluntariness, was far from harmless. The crucial statement improperly elicited was the following:
"Q. And was that the reason that you shot Harold Johnson, to get his money? A. No, that is not the reason. I don't know what it is. Q. Did you tell me that earlier when I asked you was that the reason? A. That had to be the reason.
Q. Is that the reason? A. That is the reason. That is the reason.
Q. Tell be in your own words, was that the reason you shot Harold Johnson was to get his money, is that correct? A. Yes" (Tr. 463-467).
This was the evidence which supported a conviction for murder rather than manslaughter. Before the confession was read into evidence, Frank Sorbera, the brother of defendant's employer, had testified concerning $48 which Vanderhorst had been paid by one of the employer's clients, to be turned in to the firm:
"Q. What conversation did you have with this defendant? A. Well, Mr. Vanderhorst told me that he couldn't bring up the $48 because he was sleeping -- he had slept in some friend's house and somehow or other someone rifled his pants and took the $48 out of his pocket. He didn't tell me who" (Tr. 419).
With knowledge of this conversation which had occurred a week earlier, the employer Louis Sorbera asked the defendant during questioning at the police station whether his friend, the deceased, had taken the $48. Sorbera testified that Vanderhorst, who had already been questioned by detectives at the precinct stationhouse, then said he "believed" this to be the case, and that he had gone to see Johnson on the night of the homicide with "hopes" of obtaining the money (Tr. 429-430). Louis Sorbera admitted on cross-examination, however, that while Vanderhorst had said he thought Johnson "might" have taken the $48, he never stated whether or not Johnson was the friend at whose house he had been sleeping when the money mysteriously disappeared (Tr. 438-439). There was no testimony concerning whether Vanderhorst had gone to see Johnson to inquire about money lost at his house to persons possibly unknown, or whether his "hopes" of retrieving the $48 were of a more specific and malicious nature. Vanderhorst's statement improperly elicited by the assistant district attorney was then introduced, providing the key element in establishing the motive which supported the murder conviction.
LUMBARD, Chief Judge (with whom MOORE, FRIENDLY and HAYS, Circuit Judges, concur), dissenting:
LeRoy Vanderhorst was convicted of murder in the second degree for killing one Harold Johnson on the night of April 15, 1964. There is no basis for setting aside this conviction returned by a Bronx County jury after proper rulings by the state judge before trial and during the trial which held that Vanderhorst's in-custody statements and confession were voluntary.
Vanderhorst's petition sets out no facts which were not before the state court. But he does make a constitutional argument which was not made during the trial, namely that his confession was involuntary because the assistant district attorney interrogating him had misinformed him concerning the meaning of the word "voluntary." In my view this highly technical argument cannot be raised at this time since it was not made before the trial judge. Cf. United States v. D'Amico, 2d Cir., 408 F.2d 331 (per curiam). At trial Vanderhorst did claim that his confession was involuntary, but only upon the grounds that he had been beaten and that he had not been informed of his "constitutional right not to answer questions." At no time did his competent defense counsel raise an objection based on the inaccurate definition of the word "voluntary" given by the assistant district attorney.
Moreover, the circumstances of Vanderhorst's numerous in-custody statements and his Q-and-A confession were thoroughly explored at a hearing before trial and they were the subject of considerable testimony by numerous witnesses at the trial. Indeed, Vanderhorst himself took the stand and testified that he was beaten and mistreated and that, despite his mistreatment, he never gave the answers attributed to him in the Q-and-A statement. From the trial record it seems clear to me that Vanderhorst's confession was freely given, and therefore I would deny the writ even if the merits of his claim are reached in the face of his failure to object at trial.
Vanderhorst's Arrest and Early Admissions
It is true that Vanderhorst's admissions to several persons before and after his arrest, and his Q-and-A statement given to the assistant district attorney, were of prime importance in his conviction. A review of the sequence of events leading up to and including the giving of answers in the Q-and-A statement shows that at that time Vanderhorst was willing and even anxious to talk about what had happened. There was no need to mislead him or coerce him in order to get answers to questions.*fn1
Two of Vanderhorst's friends, Charles Terrell and Rufus Simmons, both testified that Vanderhorst was with them the afternoon and evening of April 15, 1964, but had left them around 7:30 p.m. He rejoined them at a bar around 11:00 p.m. After spending some time in the bar, Terrell and Vanderhorst left about twelve o'clock. Terrell took Vanderhorst to an apartment at 305 West 146th Street occupied by their girl friends, Ora Holloway and Vivian Clements. According to Terrell, Vanderhorst said his best friend got shot but did not say who shot him; he had a gun with him and took the bullets out and put them in his pocket.
Rufus Simmons, a cousin of Vanderhorst, confirmed Terrell's testimony. He also said that he saw Vanderhorst the morning of April 16 and Vanderhorst told him "My friend got shot."
Ora Holloway testified that while Vanderhorst was at her apartment he hold her that two people had been fighting, that he had shot to frighten them away, and that he then realized he had shot his friend. She confirmed that Vanderhorst had a gun with him, and swore that he had said that he had just killed his best friend. Tr. 502. This testimony was corroborated ...