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May 16, 1972

UNITED STATES of America ex rel. Pasquale DELLE ROSE, Petitioner,
J. Edwin LaVALLEE, Superintendent of Clinton Correctional Facility, Respondent

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

Mrs. Gloria Delle Rose was murdered shortly before 1:00 p.m. on March 9, 1963, by means of what a prosecution witness described, without hyperbole, as a "diabolical scheme." The petitioner, who was her husband, was found by a jury to have killed her, apparently because of raging jeolousy over her supposed relationship with a former boyfriend. Sentenced to life imprisonment, he has now been confined for over nine years. He seeks the writ of habeas corpus on the ground that his confessions, comprising nearly all of the vital evidence against him, were not voluntary and rational, but were extracted in circumstances rendering unconstitutional their use in his trial. The ghastly facts of the crime, so far as they are now material, may be summarized as follows:

 Petitioner had suffered a back injury in October 1962 which left him unable to work. He was scheduled on Saturday, March 9, 1963, to pick up his medical records from the office of a recently deceased physician who had been treating him and to deliver the records to another physician. On the morning of that day his wife, using their automobile, went to do some shopping, returning about 11:00 a.m. for their trip together for the medical records. With her driving, they went to the home of the late physician in City Island. They arrived back in their Bronx neighborhood somewhat over an hour later, planning to shop locally for some fabric she needed. She proceeded to park the car. Within a few minutes she was dead of gunshot wounds.

 The foregoing chronology was not disputed. The heart of the grim controversy related to the question whether petitioner or someone else had rigged the device that caused Mrs. Delle Rose's death.

 According to the prosecution's contentions, rested largely upon the confessions in issue, petitioner had purchased a shotgun with which to kill his wife when he became afflicted with jealousy. In the early morning hours of March 9, 1963, about 3:00 a.m. or so, he got out of bed and lodged the shotgun so that its muzzle pointed into the back of the driver's seat. Using a wire hanger and a length of cord, he set the loaded weapon so that the triggers would be squeezed when the driver's seat was pulled forward from the position in which he left it. The plot rested upon his knowledge that his wife drove with the seat farther forward than he did.

 On the morning of March 9, the confessions and the prosecution's story continued, after the couple had taken breakfast together, she left alone for her shopping trip. Petitioner opened a window and waited to hear the explosion signaling her death. But he was disappointed.

 Then, to retrace the account given earlier, they went together to City Island and back to the Bronx. While Mrs. Delle Rose parked, petitioner reached behind her seat and accomplished what he had planned to happen automatically: he pulled the barrel forward, causing the weapon to fire and kill his wife.

 Petitioner, who testified in his own defense, denied that he had set or known of the fatal mechanism. While his wife was parking, he claimed, he was turned sideways in the passenger seat, looking through the rear window to help guide her. He noticed a "brown paper bag" and "a mat that was along with it." He reached for this "lump," grabbed the mat to see what was under it, and then heard an explosion. He learned only afterwards the cause of the explosion and the fatal injuries to his wife.

 With both the proof of his guilt and the assertion of innocence coming from petitioner's own mouth, the pretrial confessions were of undisputedly critical significance. There were two such accounts: one to police officers at the morgue, where petitioner had been taken to see his wife's body, at about 1:30 a.m.; the second taken by an assistant district attorney in question-and-answer form at about 6:00 a.m. Both were admitted over objections at the trial. Both are again questioned here.

 The procedural setting, both in the state courts and this court, should be outlined to make clear the materials underlying the fact findings hereinafter recorded. While the circumstances attending the confessions were explored in the trial, there was no hearing or ruling in the jury's absence as required by the later decision in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Accordingly, when petitioner appealed his conviction, the parties stipulated that the trial court should hold a Huntley hearing, the familiar New York procedure named for People v. Huntley, 15 N.Y. 2d 72, 255 N.Y.S. 2d 838, 204 N.E. 2d 179 (1965). For purposes of that hearing, the prosecution rested upon the trial record. Petitioner also relied upon the record, but took the witness stand to give supplementary testimony. The trial judge rendered a written decision. His opinion reviewed in separate installments the "trial testimony" and the "hearing testimony." As to the former, he said:

"So far as the trial record is concerned, I find that both these confessions are voluntary and were legally admissible in evidence."

 He then summarized the trial testimony on both sides, including defendant's assertions (contradicted by the police officers) that he was, in the long hours before confessing, "asked to put his hand in the back seat where the blood of his wife was; that the police threatened to beat him up if he did not admit he killed her; that he was compelled to say by the police that he had killed his wife but that what he meant was that he had done so inadvertently, by placing his hand over the lump; and that, after telling the officer he wanted to see his wife, he did not remember what happened thereafter until 9:00 o'clock in the morning." Similarly, the judge recited the trial testimony of a psychiatrist opining that when petitioner confessed he was so exhausted "he would say yes if you asked him if the moon were made of green cheese."

 Although he included these sworn assertions at trial by petitioner and the physician, the trial judge did not state whether or to what extent he rejected any of them.

 The opinion followed a similar course with respect to petitioner's Huntley hearing testimony. Again, there was a summary, this time in numbered and lettered paragraphs. Again, there was no statement as to how far, if at all, petitioner's account of the underlying historical facts was credited. Once more, taking all the evidence together, the judge recorded his conclusion ...

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