The opinion of the court was delivered by: FRANKEL
On October 7, 1967, a young man and a young woman were brutally murdered in the cellar of an apartment building on the lower east side of Manhattan, the woman having been sexually assaulted before she was killed. Petitioner and another were indicted for the murders. Petitioner was also indicted for a separate crime, the rape of one Sharon Hunt on the afternoon of the murders. Two years later petitioner pled guilty to one of the murders, "to cover" both indictments, and he was sentenced to a term of from 15 years to life. Before pleading guilty, petitioner had made substantial motions to suppress physical evidence and certain confessions given on the night after the killings. The ruling denying those motions was appealable under New York law, and petitioner duly appealed it. His appeals having failed, he brings the same questions here as grounds for federal habeas.
The questions thus presented were deemed substantial enough to warrant the assignment of counsel here. Petitioner's claims have now been briefed with care and scholarly imagination. Nevertheless, for reasons hereinafter outlined, the court concludes that the petition must be denied.
1. There is a threshold contention by respondent that the state guilty plea "waived" for purposes of federal habeas the claims urged by petitioner. The contention is answered by United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967), and United States ex rel. B. v. Shelly, 430 F.2d 215 (2d Cir. 1970). The latter opinion considered McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970), upon which respondent relies, and found it not to require a change from the rule of Rogers, under which petitioner is properly here.
2. The facts of petitioner's arrest and confession, and the assertions now made about them, will be recounted and decided here with relative brevity considering the time required for the study of the record leading to this account.
The victims of the murders were found in the east side basement on the morning of Sunday, October 8, 1967. Petitioner's name was mentioned early in the homicide investigation. His arrest, however, came later in the day and resulted from information about the rape of Sharon Hunt.
Information about that rape came to the precinct house by telephone. It seems evident that Sharon Hunt was the source of the information, and we learn from the papers before us that she became aware, during a long afternoon's ordeal of assaults by more than one man, that her assailants included one "Umchism," the quoted name being one used by petitioner. It seems fairly evident, then, that there was probable cause for his arrest, but this, as will appear, is not crucial to the decision herein. At any rate, four detectives went to petitioner's apartment with the purpose of bringing him to the precinct house for viewing by Sharon Hunt.
The officers asked petitioner to come to the basement with them. He was asked whether he had a key to the basement. He said he did, stating he had gotten the key from the basement tenant, and he gave the key to an officer. The door was opened at the time with this key, although one detective had, of course, been to the basement earlier and seen the dead bodies. While there was no search at this point, the key later played a brief role in the suppression hearing.
At about 8:00 p.m., at the precinct house, Sharon Hunt identified petitioner as one of her attackers. Following events unnecessary to narrate here, at some point in the vicinity of 11:00 or 12:00 p.m., petitioner admitted to a Detective Rattley that he remembered hitting the female victim with a brick, but could not recall whether or not he had hit the male. These admissions are central in the arguments petitioner makes here.
At about 1:00 a.m., and again at 4:00 a.m., on October 9, petitioner gave a question-and-answer statement to an assistant district attorney, with a stenographer taking a verbatim record. Thereafter, petitioner went with detectives to some garbage cans near his residence where he said he had thrown his clothes after the killings. The detectives retrieved the discarded garments.
3. The state suppression hearing, extending over some seven court days and producing over 900 pages of transcript, came to focus mainly upon petitioner's confession on the night of October 8, 1967, to Detective Rattley. In the course of the hearing -- which, as has been noted, preceded the guilty plea -- the prosecutor stated that he would not use at trial the key to the basement surrendered by petitioner or either of the question-and-answer statements taken in the early morning hours of October 9.
The argument most extensively made to the state court was that petitioner -- having taken LSD on October 7, a substantial amount of marijuana and amphetamines on that and the following day, and a series of drinks of wine, beer, and rum -- was in no condition on the late night of October 8 to make an intelligent, voluntary, self-willed confession of his guilt. There was also an issue whether petitioner had been given the requisite warnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and, if so, whether he had been able to make an informed and intelligent waiver of the protections that decision affords. Having listened to 10 witnesses who had observed petitioner at and around the time of his confession, and having heard the detailed testimony of petitioner himself, the state court ruled firmly against him on these subjects. The state court noted, as has this court, that petitioner, two years after the event, gave a remarkably detailed account of his menu of drugs and liquor on October 7-8, 1967, and a comparably circumstantial recital of his dealings with the police officers, including an analysis of when he had lied to them and when he had told the truth. Referring to these and other aspects of his extensive record, the state judge announced credibility findings adverse to petitioner among the premises for his ultimate conclusions.
This court has reviewed the state record fully and closely. Like most trial court records, it is not perfect. There are evidentiary rulings which, with hindsight at least, we would make differently. Taken as a whole, however, for purposes of the limited constitutional office this court is commissioned to perform, the state record must be accepted as reflecting "a full, fair, and adequate hearing . . .," 28 U.S.C. § 2254(d)(6). It follows that the state findings on voluntariness and Miranda should be sustained without more.
For his contrary view on the adequacy of the hearing, petitioner points to some proffered testimony excluded by the state judge. Without agreeing with every such ruling, this court finds that all of them together fall short of the conclusion petitioner urges. As has been mentioned, the record contained extensive testimony by a long line of witnesses and by petitioner himself as to his condition at the time of his confession. One Fred Wright, who saw petitioner fleetingly (and five hours or so after the confession which is material here), was not allowed to give a conclusory characterization of his condition. It is not possible to take the exclusion seriously. A similar ruling on the testimony of petitioner's wife (whose relevant knowledge and ability to observe were, on her own testimony, thin to the point of nonexistence) warrants a comparable observation. Again, in a dubious passage of questionable redirect, where the exclusionary ruling seemingly reflected an array of discretionary limitations, petitioner was cut off in a proposed further account of his drug ingestions. Again the point seems minor. Finally, a proposed expert, a doctor licensed abroad but not ...