Appeal from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, which denied petitioner's application for a writ of habeas corpus. Affirmed.
Friendly, Hays, and Meskill, Circuit Judges.
On March 15, 1968 George Blum, a New York City taxi driver, was shot and killed in Queens County, New York during the course of a robbery in his cab. Later the same day appellant was arrested in his apartment at the Hotel Holland in Manhattan by three detectives of the New York City Police Department and questioned about his participation in this crime after first being given certain warnings in attempted compliance with Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The interrogation continued as appellant was driven in a police car to the precinct station house and while he was in custody there. During this time he made several incriminating statements concerning the robbery and homicide.
That afternoon, approximately three hours after the arrest at the hotel, Anthony Lombardino, an Assistant District Attorney for Queens County, arrived at the station house to interrogate Tanner and obtain a recorded statement. In response to Lombardino's questioning which followed what petitioner-appellant concedes were complete Miranda warnings, Tanner admitted his presence at the scene of the crime but claimed that the robbery and shooting was the deed of his companion Kenneth Fulmore. This statement was in all material respects the same statement made earlier by Tanner to the detectives who brought him into custody.
In accordance with People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), the state trial judge held a separate hearing prior to Tanner's trial on the issue of the admissibility of the inculpatory statements made by the defendant. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). After hearing testimony of two of the arresting detectives, Assistant District Attorney Lombardino, and the defendant Tanner, the Huntley hearing judge held that all statements made by Tanner prior to his questioning by Assistant District Attorney Lombardino at the station house were inadmissible at trial because they had been preceded by an incomplete Miranda warning.*fn1 The inculpatory statements which Tanner made to the Assistant District Attorney were held to be admissible however. The Huntley court found that the warnings given Tanner prior to his interrogation by the Assistant District Attorney were in full compliance with the Miranda decision. The court also rejected as incredible Tanner's claim that threats of violence and actual physical force were exerted upon him at various times during custody by the arresting detectives prior to his statement to Lombardino. Taking into consideration all the surrounding circumstances the Court held that Tanner's statements to the Assistant District Attorney were voluntarily made.*fn2
After a jury trial in the New York State Supreme Court, Queens County at which the inculpatory statement was admitted into evidence, appellant was convicted on April 10, 1969 of manslaughter second degree, robbery first degree, and felonious possession of a weapon. He was sentenced to a maximum of forty years imprisonment. The conviction was affirmed without opinion by the Appellate Division, Second Department on February 1, 1971. People v. Tanner, 36 App.Div.2d 690, 319 N.Y.S.2d 406. In an unanimous opinion the New York Court of Appeals affirmed. People v. Tanner, 30 N.Y.2d 102, 331 N.Y.S.2d 1, 282 N.E.2d 98 (1972). On May 9, 1975 Tanner filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York which was denied by the Court in a Memorandum and Order filed on November 6, 1975. From this order petitioner appeals. We affirm.
Appellant contends that his conviction may not stand because his statement to the Assistant District Attorney was involuntarily made and therefore its admission into evidence at trial violated appellant's Fifth and Fourteenth Amendment privilege against self-incrimination. See Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964). Appellant's involuntariness claim is based on the fact that the warning given to him by the detective at the time of his arrest was found by the state court judge at the Huntley hearing to have not been in full compliance with Miranda. For this reason his statements to the police officials were suppressed. Appellant claims that the statement which he subsequently made to Assistant District Attorney Lombardino who, he concedes, properly informed him of his constitutional rights was tainted by the earlier deprivation of his rights under Miranda because Lombardino knew the results of the initial interrogations and had informed Tanner of this knowledge before questioning him. Under these circumstances, argues appellant, a suspect in custody would regard the new Miranda warnings as meaningless and see no reason at that point to remain silent or request a lawyer's assistance since "the cat would be out of the bag."
Appellant relies on our decision in United States ex rel. Stephen J. B. v. Shelly, 430 F.2d 215 (2d Cir. 1970) as authority for the proposition that his statement to Lombardino was involuntary simply because it had been preceded by statements later held inadmissible due to an inadequate Miranda warning. Stephen J. B. does not support this position. In that case the defendant, Stephen, was a sixteen year old boy whose friend's parents had put him and his companion out of their car on a public road miles from his home because of their annoyance at the boys' intoxicated conditions. The two then stole a parked car and were later apprehended in it by the police. Stephen attempted to escape but was forcibly returned to the patrol car by the officer. He was then given an incomplete Miranda warning and he immediately admitted that the car was stolen; he again confessed to another officer who arrived to assist. After being taken to the station house he was given full Miranda warnings and he again confessed. At the Huntley hearing the police testified that "he looked as though he had slept in his clothes, seemed tired, and cried in the station house." United States ex rel. Stephen J. B. v. Shelly, supra at 217.
The district court granted the petitioner's application for a writ of habeas corpus since in its view the totality of the circumstances surrounding the boy's confession including the factors of his youth and lack of prior experience with police officials indicated the ineffectiveness of the later waiver.*fn3 This Court held that it had no reason to upset the district court's conclusion given the failure of either party to raise the issue of the deference statutorily required to be given by a federal district court under 28 U.S.C. § 2254(d)*fn4 to a determination of voluntariness of a waiver by the state court in a Jackson v. Denno suppression hearing. Assuming "that the question of voluntary waiver [of Miranda rights] was open to the fullest scrutiny by the district judge" United States ex rel. Stephen J. B. v. Shelly, supra at 218 n.4, the divided panel held that the finding of involuntariness was supported by the uncontested facts found in the state court proceeding, among them the fact that the petitioner had initially confessed without being fully advised of his constitutional rights. Significantly however, the majority opinion, like that of the district court, relied on all the circumstances presented by the particular case in reaching its conclusion.
" The 'cat-out-of-the-bag' theory is hardly the only evidence pointing to the absence of a legally sufficient waiver. Petitioner was 16 years of age at the time of the events described. He had never been in difficulty with the police before, but on this particular night he was recaptured after fleeing from a stolen car, virtually held up by the scruff of the neck, handcuffed and taken to the police station. Once there he was alone, deserted by his friend . . ., without any assistance from his parents or a lawyer. Testimony by police officers indicated that at the station house he looked tired and seemed to have slept in his clothes, and at one point even appeared to have been crying." 430 F.2d at 219 (emphasis supplied).
It was on the basis of all these relevant factors and an evaluation of their cumulative impact on the petitioner that the district court's determination in Stephen J. B. was upheld.
In the instant case appellant in effect argues for the adoption of a per se rule which would require an automatic finding of involuntariness with respect to any statement made in custody by an individual fully informed of his constitutional rights if at some earlier time the individual had made inculpatory remarks without the benefit of complete Miranda warnings unless at the subsequent interrogation that individual is specifically informed that his earlier statements are inadmissible in any criminal proceedings that may be brought against him. Requiring such additional warnings would impose an undue burden in many cases, including this one, where the defectiveness of the initial warnings was not at all apparent at the time of the second confession. Compare United States v. Killough, 114 U.S. App. D.C. 305, 315 F.2d 241, 250 (1962) (Wright, J., concurring). And, of course, "[a] watered-down version of the warning, to the effect that the prior confession may be inadmissible, is obviously of little help." Id. at 251. Accordingly, we reject this mechanistic approach and adhere to the established rule that the voluntariness of any custodial statement must be determined from an examination of the totality of particular facts surrounding its making. See, Clewis v. Texas, 386 U.S. 707, 18 L. Ed. 2d 423, 87 S. Ct. 1338 (1967); United States v. Bayer, 331 U.S. 532, 539-41, 91 L. Ed. 1654, 67 S. Ct. 1394 (1947); United States v. Mullens, 536 F.2d 997, (2d Cir. N.Y. 1976) (slip op. at 4361); Knott v. Howard, 511 F.2d 1060 (1st Cir. 1975) (per curiam). Cf., Schneckloth v. Bustamonte, 412 U.S. 218, 223-27, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Collins v. Brierly, 492 F.2d 735 (3d Cir.) (en banc), cert. denied, 419 U.S. 877, 42 L. Ed. 2d 116, 95 S. Ct. 140 (1974). Therefore, while it is true that Tanner had "let the cat out of the bag" United States v. Bayer, supra, 331 U.S. at 540, in his ...