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May 9, 1978;

HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent


The opinion of the court was delivered by: CURTIN

On April 18, 1959, Henry Duscher, owner of a delicatessen which was located at the corner of Delaware Avenue and Sanders Road in Buffalo, New York, was shot and killed in the course of a robbery at his store. Petitioner Willie James Robinson and codefendants Alphonso Williams and Ernest Jackson were tried for this crime and were convicted on October 23, 1959 in Erie County Court following a jury trial. All three were sentenced to life imprisonment. Petitioner and codefendant Jackson appealed their convictions and the Appellate Division, Fourth Department, reversed and ordered a new trial. 16 App.Div.2d 184, 224 N.Y.S.2d 705 (4th Dept. 1962). Alphonso Williams did not appeal his conviction.

Petitioner's second trial also resulted in a conviction for first degree murder. The jury's recommendation of leniency was disregarded by the trial judge and petitioner and his codefendant Jackson were sentenced to death. Petitioner was confined for a period of time on death row at Sing Sing State Prison (Ossining Correctional Facility) before his conviction was reversed by the New York State Court of Appeals on December 30, 1963, and a new trial was ordered. 13 N.Y.2d 296, 246 N.Y.S.2d 623, 196 N.E.2d 261 (1963). Thereafter the indictment against Ernest Jackson was dismissed and petitioner was tried for the third time, alone. Petitioner was again convicted on June 12, 1964. He appealed to the Appellate Division, Fourth Department, which reserved decision and remanded the case to the Erie County Court for a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), to determine the voluntariness of petitioner's confession which had been admitted into evidence at his third trial. 28 App.Div.2d 816, 281 N.Y.S.2d 956 (4th Dept. 1967).

 A suppression hearing was held before Erie County Court Judge Jacob A. Latona and, on December 29,1967, Judge Latona ruled, in a detailed and well-reasoned opinion, that petitioner's confession had been involuntary and should be suppressed. However, the Appellate Division then reversed Judge Latona's decision "on the law and facts" and affirmed the conviction. 31 App.Div.2d 724, 297 N.Y.S.2d 82 (4th Dept. 1968). Petitioner was denied leave to appeal this decision by the New York State Court of Appeals on April 1, 1969. He continues to serve the term of life imprisonment in the Attica Correctional Facility that was imposed on June 16, 1964.

 Petitioner filed his application for writ of habeas corpus with this court on July 16, 1973. After respondent filed an answering affidavit on October 30, 1973, nothing further transpired in this matter until February 11, 1976, when Michael I. Davidson, Esq. was appointed to represent petitioner. An amended petition was filed in petitioner's behalf on March 24, 1976 and, on April 27, 1976, respondent filed a supplemental answer in which he acknowledged that petitioner had exhausted his remedies in the New York State courts pursuant to 28 U.S.C. § 2254(b). The issues were then thoroughly briefed by both parties and petitioner's claims were argued before me on July 30, 1976. Subsequently, Philip Halpern, Esq. was appointed to succeed Michael I. Davidson, Esq. as petitioner's counsel. Ernest L. Montanye has been succeeded by Harold J. Smith as superintendent of the Attica Correctional Facility.

 Petitioner urges that his conviction, following his third trial, was unconstitutionally obtained through the prosecution's introduction into evidence of a coerced confession and other statements obtained from petitioner following an illegal arrest. Petitioner claims that this error was compounded and that he was further deprived of his right to due process of law when the trial judge failed to properly advise the jury as to the criteria it could consider in determining whether or not petitioner's confession had been voluntary. In addition, petitioner alleges that he was deprived of a fair trial when the prosecution placed his former codefendants on the witness stand only for the purpose of having them invoke their privilege against self-incrimination in the presence of the jurors.

 My review of the record of petitioner's third trial, held in May and June, 1964, and of the Huntley Hearing held in October, 1967, *fn1" reveals the following facts concerning petitioner's confession. After Henry Duscher was robbed and shot to death on April 18, 1959, witnesses reported to the police that three black men, two of whom had entered the store and one who had driven the getaway car, had participated in the crime. During the course of the investigation, between 25 and 30 black men were picked up by law enforcement officials, were held without charges being brought against them, were questioned and were then released.

 Following an anonymous tip that was received by the police on April 20, 1959, petitioner Robinson, Alphonso Williams and a Bobbie Ferguson were taken to Police Headquarters for questioning. While at Police Headquarters, these three men were viewed by all of the known witnesses to the events surrounding the Duscher slaying. However, the witnesses failed to identify any of these suspects as being participants in the crime. Petitioner was questioned about his activities on the evening of April 18, 1959, and was then released.

 On April 21, 1959, two detectives of the Buffalo Police Department were ordered to bring petitioner to police Headquarters for questioning in the Duscher case. The basis for this order is not known. The detectives located petitioner at a William Street tavern shortly after midnight on April 22, 1959. The detectives advised petitioner that he was wanted for questioning in the Duscher case. They then proceeded to arrest him and to take him to Police Headquarters. When he arrived at Police Headquarters, petitioner was booked on a charge of first degree murder but he was not advised of this fact.

 At this time, police were also holding two other men, Alphonso Williams and Ernest Jackson, as suspects in the Duscher case. In response to police interrogation, petitioner denied any knowledge of the crime although he did eventually admit that he knew Ernest Jackson.

 Police officials, who believed that Jackson had been implicated in the Duscher murder based on information obtained by an informant in the cell next to Jackson's, *fn2" then devised a plan to elicit further information from the petitioner. A spurious confession, implicating petitioner as the "trigger man," was typed and one of the police officers signed Ernest Jackson's name to it. At about 6:00 a.m., petitioner was confronted with the spurious confession. However, he initially continued to deny that he had any role in the Duscher killing. All but one officer then left the room. The remaining officer continued to speak with petitioner alone. During the course of questioning petitioner, this officer discussed the "benefits" of talking. Petitioner was told that he "should not be the fall guy" and that he should not put a rope around his own neck. (Huntley Hearing Transcript at 273). The officer advised petitioner that if he "told us the facts that he would probably receive the benefits of any leniency that may come to him in the courts." (H.H. at 274). However, petitioner was not advised that he might involve himself in a murder charge by making a statement to the officer. After about twenty minutes of questioning by this officer, petitioner told the officer "it's a deal" (H.H. at 276), and then agreed to give the statement which is primarily at issue here. *fn3" During this interrogation by police officers, petitioner had not been advised of his right to counsel and his right to remain silent. Nor had he been told that his statements might be used against him. At the time that he agreed to make a statement, petitioner had been in police custody for seven hours, he had had little if any opportunity to sleep and he had not been given anything to eat.

 Shortly after 10:00 a.m. on April 22, 1959, petitioner began to provide answers to the questions of the Erie County District Attorney. Petitioner's statement was not transcribed that day and, in fact, petitioner never did sign the statement.

 To this point, there had been no effort to arraign the petitioner. Nor had he been advised that he had already been charged with murder. At about 12:00 noon, petitioner was taken to the police garage where he was asked to identify the vehicle used in the robbery, which he did. At 2:00 p.m. on April 22, 1959, some fourteen hours after he had been taken into police custody, petitioner was arraigned on the murder charge.

 Before discussing petitioner's substantive claims, I must first decide whether or not the exhaustion requirements of 28 U.S.C. § 2254(b) have been satisfied for petitioner's claim that his conviction was obtained in violation of the fourth amendment when the fruits of an illegal arrest were used as evidence against him. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Although petitioner has alleged that all issues have been previously presented to the New York State courts, including the appeals courts, before they were presented in this federal court, and respondent has acknowledged that the exhaustion requirement has been met, it became apparent from my review of the state court record and briefs on appeal that this may not have been the case. I then directed counsel for both parties to address this issue in supplemental memoranda which have now been filed with the court.

 As the Second Circuit Court of Appeals has recently recognized, "it is elementary under Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), that a state prisoner who petitions for a writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust his state remedies." Wilson v. Fogg, 571 F.2d 91,92 (2d Cir. 1978). The petitioner must present to the state courts the same claim he urges upon the federal courts. Wilson v. Fogg, supra; United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 994 (2d Cir. 1974); United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2d Cir.), cert. denied 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972). My review of the record indicates that the matter of probable cause for petitioner's arrest on April 22, 1959 was explored at the Huntley Hearing, was addressed by petitioner's counsel in his closing remarks at that hearing, and was also discussed by Judge Latona in his decision of December 29, 1967, finding that petitioner's confession had been involuntary. Wong Sun, which recognized that if a confession following an illegal arrest is to avoid suppression as "fruit of the poisonous tree," it must be shown to have been sufficiently an act of free will to purge the primary taint, was decided on January 14, 1963. Traub v. Connecticut, 374 U.S. 493, 10 L. Ed. 2d 1048, 83 S. Ct. 1899, which applied the Wong Sun exclusionary rule to state court prosecutions, was decided on June 17, 1963. Petitioner's third trial, at issue here, began on May 18, 1964, well after the United States Supreme Court established in Wong Sun that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), may apply to verbal statements that follow an illegal arrest. However, there is no indication in the trial record that petitioner's counsel urged that petitioner's confession be suppressed under the principle established in Wong Sun. The legal arguments supporting suppression of the confession under Wong Sun were neither presented to the Appellate Division, Fourth Department, upon petitioner's direct appeal following his third trial, nor were these arguments presented at the Huntley Hearing following the remand to the trial court by the Appellate Division.

 I believe that the claim under Wong Sun and Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), which petitioner has presented to this federal court is substantially different from that presented to the state courts. See Allen v. County Court, Ulster County, 568 F.2d 998 (2d Cir. 1977). Since petitioner has clearly failed to present this claim and legal argument to the New York State courts for their decision, I cannot address this issue here. See Picard v. Connor, supra; Fielding v. LeFevre, 548 F.2d 1102 (2d Cir. 1977). *fn4"

 Petitioner's primary claim is that his conviction was obtained in violation of the fourteenth amendment guarantee of due process of law when a coerced confession was introduced as evidence against him at his trial. While the People did call a number of witnesses who provided circumstantial evidence of the crime charged, it is clear that petitioner's confession was of critical importance. *fn5"

 It is my duty in reviewing this habeas corpus petition to examine the entire record, including the Huntley Hearing and trial transcripts, and to independently determine whether on the basis of the undisputed facts there is merit to petitioner's claim that his confession was not voluntary. United States ex rel. Wade v. Jackson, 256 F.2d 7, 9 (2d Cir.), cert. denied 357 U.S. 908, 2 L. Ed. 2d 1158, 78 S. Ct. 1152 (1958). See also Clewis v. Texas, 386 U.S. 707, 708, 18 L. Ed. 2d 423, 87 S. Ct. 1338 (1967); Davis v. North Carolina, 384 U.S. 737, 741-742, 16 L. Ed. 2d 895, 86 S. Ct. 1761 (1966); Haynes v. Washington, 373 U.S. 503, 515-516, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963). *fn6" If my review of the undisputed facts indicates that petitioner's confession was coerced, then his conviction and detention have been obtained in violation of the due process clause of the fourteenth amendment.

 The test of voluntariness of a confession is whether an examination of the totality of the circumstances indicates that the conduct of law enforcement officials was such as to overbear petitioner's will to resist and to bring about a confession that was not the product of a rational intellect and a free will. United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.), cert. denied, 419 U.S. 1032, 42 L. Ed. 2d 307, 95 S. Ct. 514 (1974); United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.), cert. denied, 389 U.S. 908, 19 L. Ed. 2d 225, 88 S. Ct. 225 (1967). See also Procunier v. Atchley, 400 U.S. 446, 27 L. Ed. 2d 524, 91 S. Ct. 485 (1971); Davis v. North Carolina, supra; Reck v. Pate, 367 U.S. 433, 6 L. Ed. 2d 948, 81 S. Ct. 1541 (1961); Blackburn v. Alabama, 361 U.S. 199, 4 L. Ed. 2d 242, 80 S. Ct. 274 (1960). Justice Frankfurter has articulated the test of voluntariness which guides my review of petitioner's application in this court:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.

 Culombe v. Connecticut, 367 U.S. 568, 602, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961).

 In order to resolve this issue of voluntariness, I must consider and weigh all of the circumstances which surrounded petitioner's confession given to law enforcement authorities in 1959. Since Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), have not been given retroactive effect [ Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966)], the admissibility of petitioner's statement must be governed by the then-existing contemporary case law elaborating the constitutional due process standard of voluntariness. Analysis of a variety of factors is required to resolve this issue.


 The Duscher murder investigation was widely publicized in the Buffalo community. Racial tensions were exacerbated by reports that three black males were responsible for the death of a white businessman whose store was located in a predominantly white neighborhood. Police activity was subjected to critical public scrutiny. Sometime shortly before the incident, a special group of police officers specifically assigned to North Buffalo where Henry Duscher's store was located had been disbanded and integrated into another squad. Referring to the Duscher case, a report in the Buffalo Evening News of April 20, 1959 noted that "the slaying came embarrassingly soon after the disbanding of the North Side squad by Detective Chief John J. Whalen." (H.H. at 34). The News also reported that one hundred and fifty Buffalo police officers had participated in some phase of the investigation. (H.H. at 37-38). The news reports reflected obvious community pressure for the police to "get someone" for Duscher's murder.

 Chief Whalen, who was responsible for supervising the investigation, testified that he was aware of the publicity that the investigation was receiving in the press. (H.H. at 39). Whalen acknowledged that a considerable number of police officers had been involved in the investigation, including many who had volunteered their time to investigate the case. Chief Whalen's best estimates were that sixty-five to one hundred, and maybe even more, officers had ...

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