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June 23, 1971

John A. McINTYRE, Petitioner,
The STATE OF NEW YORK, Respondent

Bartels, District Judge.

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

Petitioner, John A. McIntyre, presently incarcerated in the Brooklyn House of Detention, seeks his release through federal habeas corpus. On March 24, 1969, the Appellate Division, Second Department, set aside McIntyre's convictions for the crimes of robbery in the first degree and felony murder upon the ground that there existed the possibility that race prejudice precluded him from receiving a fair trial. People v. McIntyre, 31 A.D. 2d 964, 299 N.Y.S. 2d 88 (1969). In the course of that opinion, the Appellate Division considered and rejected McIntyre's claim that his confession to the crimes should be suppressed because it was taken in violation of the decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). McIntyre sought leave to appeal to the Court of Appeals, which was denied by Judge Scileppi on September 18, 1969. Prior to his retrial McIntyre sought habeas corpus relief in this court upon several grounds including the Miranda claim. This court declined to pass upon the Miranda issue because at that stage of the proceedings the contention was premature. Since that time petitioner has been retried and convicted, the confession being introduced into evidence. By letter dated April 20, 1971, in the form of a civil rights action, petitioner renewed his application for relief upon the Miranda ground and also added a claim for relief predicated upon the denial of his right to a hearing to examine the possible prejudice of the second jury. This latter claim has obviously not been exhausted and thus cannot be entertained by this court. *fn1" The court, however, concludes that the Miranda claim is now ripe for adjudication.


 The exhaustion requirement in habeas corpus jurisprudence is based upon the principle of comity rather than jurisdictional limitation. United States ex rel. Gockley v. Myers, 411 F.2d 216, 219 (3d Cir. 1969), cert. denied, 396 U.S. 847, 90 S. Ct. 96, 24 L. Ed. 2d 96 (1970); Bell v. Alabama, 367 F.2d 243, 248 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S. Ct. 859, 17 L. Ed. 2d 788 (1967). While due regard for this principle requires that the state court hierarchy be afforded the initial opportunity to pass upon alleged claims of unconstitutional restraint (Fay v. Noia, 372 U.S. 391, 419-420, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)), it nevertheless does not authorize this court to require a prisoner to pursue duplicate review of an issue which has been conclusively passed upon by the intermediate state appellate tribunal and which has been presented to the state's highest court, although such tribunal has chosen not to expressly deal with the merits of the claim. Cf. United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 556 (3d Cir. 1969); Sheftic v. Boles, 377 F.2d 423 (4th Cir. 1967), cert. denied, 389 U.S. 986, 88 S. Ct. 476, 19 L. Ed. 2d 479 (1967). The Miranda claim having been exhausted, we turn to a consideration of the merits.


 Prior to trial the Miranda claim was thoroughly aired at a Huntley hearing presided over by the Honorable Julius Helfand. The following testimony was adduced at that hearing: At about 2:30 P.M. on September 5, 1967, John A. McIntyre was arrested fleeing the scene of a grocery store robbery and was brought to the detectives' office at the 67th Precinct. *fn2" At approximately 3 P.M. he was advised of his rights by an Assistant District Attorney who was summoned to question him regarding the robbery which had been committed that day. McIntyre refused to answer any question "on the grounds of the Fifth Amendment." Upon his invocation of rights, questioning was immediately terminated. *fn3" At about 5 P.M. Detective Frank Tornabene arrived at the 67th Precinct. Tornabene had been previously assigned to investigate a robbery and homicide which occurred on August 5, 1966 at a grocery store located several blocks from the scene of the September 5th robbery. At this time he brought two women to the station house to view petitioner. Prior to speaking to McIntyre, Tornabene asked the Assistant District Attorney for permission to ask McIntyre some questions regarding a different crime, to which inquiry the Assistant responded in the affirmative provided that McIntyre was again given his Miranda warnings. According to Tornabene, the following then transspired:

 He advised petitioner of his constitutional rights by reading from a printed form of the Police Department of the City of New York. After each question he asked McIntyre whether he understood and McIntyre responded that he did. McIntyre then signed the form and initialed a correction which had been made regarding one of the answers he had given. *fn4" After these preliminaries, Tornabene told McIntyre that he had been identified as having been in the grocery store which was robbed on August 5th. *fn5" He asked McIntyre if he could tell him where he had been on that date. McIntyre replied that he had been in Fayetteville, North Carolina. When Tornabene asked him if there was any way he could check on his answer, McIntyre replied that there was a bus ticket which would show that he came to New York on about August 17th. With permission of the petitioner, Detective John Mangan went to petitioner's apartment and returned with a bus ticket which had the date of August 2, 1966 stamped on it. *fn6" Petitioner attempted to explain this discrepancy by saying that he was travelling back and forth from New York and thought that the ticket had a later date on it. By question and answer, McIntyre then related what occurred on August 5, 1966. He stated that on that date he was working at the Sellick Furniture Company on Utica Avenue in Brooklyn and went to lunch at about 12 o'clock, and that during the lunch hour he went to a grocery store to buy a soda, saw some money in the store's register, reached over the counter, took the money, and when a woman ran over to where he was he pushed her and ran from the store. *fn7" Tornabene showed McIntyre a picture of the deceased and McIntyre said that it looked like the woman he had pushed. Tornabene specifically denied that he had physically abused McIntyre or saw McIntyre being beaten by any other person at any time. At about 9 P.M. Tornabene along with Detective Mangan and Patrolman Raffa drove McIntyre to the vicinity of the crime and asked him to point out the store which he had robbed. McIntyre selected the right store which had since become vacant. Upon their return to the station house, Tornabene sent for an Assistant District Attorney, who arrived at the station house at about 11 P.M. After being informed of his rights McIntyre declined to make any statement to him.

 At the Huntley hearing McIntyre testified in his own behalf to a story markedly different from the one related by Tornabene. In substance, he claimed that he was not informed of his rights by Tornabene at 6:30 P.M., that he did not sign the Miranda card until 11 P.M., and that he was beaten for several hours by Tornabene and another policeman until he finally confessed to the crime in order to prevent the continuation of the beatings. *fn8" In rebuttal, Detective Mangan, who was present for most of the interrogation, testified that McIntyre signed the card at 6:30 P.M. and further testified that he did not observe McIntyre being beaten nor did McIntyre exhibit any marks of a beating. *fn9"

 At the conclusion of the Huntley hearing upon the August 5th robbery, the court ruled that the incriminating statements would be admissible at the trial. In so ruling, the court specifically found that there was no credible evidence supporting the claimed police brutality. *fn10" More importantly for this application, the court found that "the defendant was fully advised of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694; that he fully understood these warnings and advice and that the People have established this beyond a reasonable doubt." The court further found that "the People have established beyond a reasonable doubt that the defendant knowingly and intelligently and without any coercion whatsoever waived his constitutional rights and freely and voluntarily made the statements sought to be excluded * * *."

 The Appellate Division agreed with this ultimate determination of the lower court. It held that although it was improper to question petitioner concerning the August 5th robbery after he had asserted his Miranda rights with respect to the September 5th robbery, this error was cured by petitioner's knowing and intelligent waiver of his rights under the totality of the circumstances.


 The determination as to whether an in-custody defendant has waived his Miranda rights depends in each case upon a careful analysis of the facts and circumstances of the case. United States v. Anderson, 394 F.2d 743 (2d Cir. 1968). Once a defendant has asserted his privilege to remain silent a governmental claim of waiver must be scrutinized with special care. At least one court has gone so far as to say that once the right to silence has been invoked, all further attempts at police interrogation must cease until counsel is appointed regardless of the development of new facts relevant to the prosecution. People v. Fioritto, 68 Cal. 2d 714, 68 Cal. Rptr. 817, 441 P. 2d 625 (1968). Other jurisdictions, including this Circuit, have eschewed so rigid a prophylactic rule in favor of a careful evaluation of the realities of each particular case. United States v. Brady, 421 F.2d 681 (2d Cir. 1970); United States v. Grady, 423 F.2d 1091 (5th Cir. 1970); Wilson v. United States, 398 F.2d 331 (5th Cir. 1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 727, 21 L. Ed. 2d 712 (1969); Jennings v. United States, 391 F.2d 512 (5th Cir. 1968); State v. Godfrey, 182 Neb. 451, 155 N.W. 2d 438, cert. denied, 392 U.S. 937, 88 S. Ct. 2309, 20 L. Ed. 2d 1396 (1968); State v. Bishop, 272 N.C. 283, 158 S.E. 2d 511 (1968). This approach to the problem is no more than an individual application of the more general waiver rule. The high standard of proof needed to establish a waiver of constitutional rights adopted in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), and reasserted in Miranda v. Arizona, 384 U.S. at 475, 86 S. Ct. 1602, was stated in Johnson as follows:

"It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." (304 U.S. at 464, 58 S. Ct. at 1023).

 Applying this test to the facts of the instant case, this court is compelled to agree with the state court's finding that McIntyre knowingly, intelligently and voluntarily waived his right to remain silent ...

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