Kaufman, Hays and Gibbons,*fn* Circuit Judges.
Appellant was convicted by a jury of second degree murder in the County Court of Sullivan County on January 26, 1966. On March 8, 1966 he was sentenced to twenty years to life imprisonment, and he is still in custody. On direct appeal his conviction was affirmed by the Appellate Division, 27 A.D.2d 861, 277 N.Y.S.2d 530, 531 (3rd Dep't 1967). The Court of Appeals of the State of New York affirmed without opinion, 20 N.Y.2d 814, 284 N.Y.S.2d 705, 231 N.E.2d 291, rearg. den., 21 N.Y.2d 774, 289 N.Y.S.2d 1029, 235 N.E.2d 228 (1968). Certiorari was denied. 391 U.S. 956, 88 S. Ct. 1862, 20 L. Ed. 2d 870 (1968). Appellant then filed a petition for a writ of habeas corpus. On the basis of the state court record, without a hearing, the district court denied the writ, and this appeal followed. It raises two issues:
(1) Were certain incriminating statements admitted against appellant in the state trial voluntary?
(2) Was the delay in appellant's arraignment on the charge of which he was convicted a violation of federally protected constitutional rights?
Because of the disposition which we make, we reach only the first issue. We hold that on the undisputed historical facts as found in the New York state court proceedings certain inculpatory statements admitted in evidence against appellant were involuntary as a matter of federal constitutional law.
The undisputed facts are these: In April of 1965 appellant, a 27 year old Negro male employed as a caddie at the Concord Hotel golf course, was living with one Doris Anderson at her home in Monticello, New York. Some time toward the end of April Doris Anderson disappeared, and some time early in May her disappearance was noted by the Monticello Police Department, which began an investigation.
On May 8, 1965 appellant was questioned briefly near Doris Anderson's house, where he was still living, about Doris Anderson's whereabouts. He denied knowledge of her whereabouts. On May 9, 1965 he was questioned at the golf course and later was taken in a police car by Lieutenant Yank and two other officers of the Monticello Police Department to the Monticello police station, where he was questioned for about half an hour by several officers and then permitted to go. He explained his possession of Doris Anderson's car, and denied knowledge of her whereabouts.
On May 10, 1965 appellant arose about 6:00 A.M. and went to the golf course, where he caddied for 27 holes, with only a ten minute break for a sandwich. After work he returned to Doris Anderson's house to change clothes and proceeded to the Club Paradise in Monticello, intending to eat. However, Lieutenant Yank of the Monticello Police Department arrived at the Club Paradise accompanied by two state police officers, Investigators Buck and Scherpf. He was asked if he would go to Ferndale Barracks for further questioning relating to Doris Anderson's whereabouts, and he agreed to do so. He was taken in a police car from the Club Paradise, in the company of three officers, not to the nearby Monticello police station, where a magistrate was available but to the state police barracks at Ferndale, some 12 miles away. The party arrived at Ferndale Barracks at 5:30 P.M., and appellant was brought to a second floor interrogation room. He was not then warned of his right to counsel, or of his right to remain silent, or of the possibility that anything he said might be used against him. He had not technically been arrested, but patently he was the focus of a police inquiry into Doris Anderson's disappearance.
Between 5:30 P.M. and 6:30 P.M. appellant was interrogated by Investigators Buck and Scherpf and by Lieutenant Yank. At 6:30 P.M. Investigator Kalijan, a polygraph expert employed by the state police, arrived and from 6:30 P.M. to 9:00 P.M. he, Buck, Scherpf, and Yank continued the interrogation. Between 9:00 P.M. and 10:30 P.M. Investigator Kalijan administered a polygraph test. During these interrogations appellant made no incriminating admissions.
From 10:30 P.M. until 2:00 A.M. on May 11, 1965, appellant was questioned by Investigator Scherpf alone. From 2:00 A.M. until 4:15 A.M. he was questioned by Investigator Buck alone. Appellant did not sleep during this entire period. The disputed testimony, taken in the light most favorable to the interrogators, is that Investigator Scherpf gave him some pastry at some time between 9:00 P.M. and 11:00 P.M. During all this time the interrogators continued to demand that he tell what happened to Doris Anderson, and appellant continued to deny knowledge of her whereabouts. During all this time appellant was not technically under arrest. He was merely alone twelve miles from home, without transportation of his own, on the second floor of a police barracks, in the middle of the night, in the custody of relays of interrogators. He still had received no fifth amendment or sixth amendment warnings.
At 4:30 A.M. Lieutenant Yank entered the interrogation room. At that point appellant broke down and cried and admitted that he had killed Doris Anderson accidentally in the course of a struggle. He gave a detailed version of the circumstances leading up to a fight with Doris Anderson, of her assault against him first with a whisky bottle and then with a rifle, and of an accidental discharge of the rifle as he struggled to wrest it from her hands. He admitted to a state of panic in which he concealed the evidence of Doris' death, and he agreed to show the police where the body was buried. Accepting that testimony most favorable to the police, appellant was given a sandwich and coffee about this time. One officer said it was only coffee.
After he told this story appellant was formally arrested for homicide although his admissions established only an accidental death. About this time, accepting that version of the testimony most favorable to the police, he was told that he could remain silent and was entitled to counsel, but he agreed, instead, to show the police where Doris Anderson was buried.
No effort was made at this point to arraign him. Instead, an imposing company was gathered to accompany appellant in handcuffs to the grave site just outside Monticello which he had described. This company included the District Attorney of Sullivan County, the Sullivan County Coroner, seven state police officials, the Chief, a ...