Appeal from a judgment order of the United States District Court for the Western District of New York, Curtin, J., denying without an evidentiary hearing a petition seeking the issuance of a writ of habeas corpus. Affirmed.
Before Waterman, Ingraham*fn* and Mansfield, Circuit Judges.
This is an appeal from a judgment order of the United States District Court for the Western District of New York, Curtin, J., denying without an evidentiary hearing a petition seeking the issuance of a writ of habeas corpus. Assigned counsel has done an admirable job briefing and arguing this appeal but, inasmuch as we find no error in Judge Curtin's decision or reasoning, we affirm.
On August 24, 1971 a Brooklyn, New York supermarket was robbed and the assistant manager, Thomas Higgins, was shot to death during the course of the robbery. At about 6:30 a. m. on September 8, 1971, the police arrested one Robert Smith for the murder of Higgins and upon his arrest Smith immediately confessed and implicated Alexander, the petitioner-appellant here, in the robbery and murder. Acting upon the information so received and other information as well, the police, with Smith present to identify the apartment where Alexander resided, went directly to Alexander's apartment and arrested him there at approximately 7:30 a. m. As he was being taken into custody, Alexander, who in view of a number of previous arrests was probably well-acquainted with what should be done in such a situation, instructed his wife to call his attorney. The police officer told Alexander's wife that Alexander would be taken to the 73rd Precinct.*fn1 Upon arrival at the 73rd Precinct stationhouse, contrary to standard practice, Alexander was not immediately booked but was instead taken to a detention cell. At about 10:30 a. m. one of the arresting officers, a Detective Schneider, took Alexander to a bathroom. Upon returning to the detention pen, while walking through the police locker room, Alexander indicated that he wished to discuss his situation with the officer. Detective Schneider then read Alexander his Miranda rights, among which were included his rights to be represented by an attorney, to have counsel present during any interrogation, and to have an attorney appointed for him if he could not afford one. As Alexander was being advised of each distinct right, Detective Schneider asked Alexander whether Alexander understood each of these rights. Each time he was so asked, Alexander nodded his head in the affirmative. After being advised of his rights, Alexander was asked whether he still wished to make a statement without counsel being present. After again indicating that his response was in the affirmative, Alexander asked "What am I here for?" In response the detective stated that Alexander was being held "for the Bohack killing." Alexander thereupon exclaimed: "My gun wasn't popping. Gene's was." He thereby implicated himself in the robbery and murder at the supermarket in Brooklyn. When Detective Schneider notified a second officer, Detective Cambridge, as to what had occurred, the latter entered the locker room and again informed Alexander of his Miranda rights. Again choosing to waive those rights, Alexander once more implicated himself in the crime by telling Detective Cambridge: "All right, you have got me and you have got the little guy. I know the little guy gave me up." After further probing the officer's knowledge concerning the circumstances surrounding the commission of the crime, Alexander further stated, in substance, according to Detective Cambridge, that "(t)wo of Gene's regular partners had to go south for a funeral, and Gene said to me and the little guy we didn't have to do anything, one of us would stand by the door and the other would take the registers."*fn2
Following ten hours during which he might have received only a minimal amount of food or drink while being held in the detention cell but during which time he had not been subjected to any further interrogation,*fn3 Alexander was again questioned on September 8, this time at 9 p. m. that evening by Assistant District Attorney DiBenedetto. The state prosecutor again read Alexander all of his Miranda rights. Alexander was then asked if he understood each right and in each instance he replied "Yes." Alexander then asked, "You said that if I wanted an attorney present, that's my right to have an attorney present (?)" DiBenedetto responded, rather obliquely, that Alexander himself could decide whether he wished to provide any answers to any of the prosecutor's questions. An off-the-record discussion followed and immediately thereafter, Alexander said: "Pop your questions." This the assistant district attorney forthwith proceeded to do. In response to DiBenedetto's questions, Alexander gave an extremely comprehensive statement which fully implicated him in the robbery and murder at the Bohack's supermarket in Brooklyn.*fn4
Alexander was finally booked at 11 p. m. that same evening and he was arraigned on a felony murder charge the following day. Indictment followed on September 11, 1971. On September 15, 1971, counsel was appointed to represent him.
In accordance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), a pretrial hearing (hereinafter the "Huntley hearing") on Alexander's motion to suppress the two incriminating statements he had made to the detectives and the detailed confession he had made to the assistant district attorney was held from February 15, 1972 through February 22, 1972 before Justice Joseph Mollen of the New York State Supreme Court, Kings County. At the close of this protracted hearing, Alexander sought to reopen the record so that he could introduce the testimony of two additional witnesses, that of his wife and that of his father-in-law, German, both of whom had been previously unavailable because they had been attending the out-of-state funeral of a member of the family. In refusing to permit Mrs. Alexander to corroborate her husband's testimony that he had been beaten at the time of his arrest, Justice Mollen stated that the wife's testimony would have been merely cumulative to that given by Alexander and would not have been relevant to the issue of voluntariness inasmuch as there was no indication that petitioner had confessed as a result of the alleged blows inflicted by the police at the time of Alexander's apprehension at his apartment at about 7:30 a. m. on the morning of September 8, 1971. See note 1 Supra. As to the proffered testimony of Alexander's father-in-law that, upon appearing at the 73rd Precinct house during the day of September 8, 1971, he had been informed that Alexander was not at the stationhouse, when, in fact, Alexander was being held in a detention cell upstairs, Justice Mollen ruled that such testimony would be hearsay and "would not (, in any event,) have any real bearing on the issues before the Court" in the Huntley hearing.
The state trial court judge then read into the record his detailed findings of fact and conclusions of law. Justice Mollen found that Alexander had been adequately advised of his Miranda rights and had knowingly and intelligently waived them. The judge also found that all of Alexander's statements were fully voluntary and that "no force, no duress, no coercion, no violence" had been used by the police or the prosecutor to compel Alexander to make any statements to the detectives or to the assistant district attorney.
Alexander's trial in the New York State Supreme Court, Kings County, on a charge of felony murder commenced on February 28, 1972. On the second day of trial Justice Mollen reversed his earlier determination, made at the Huntley hearing, and ruled that the first statement Alexander had made to the police in the locker room on the morning of the 8th of September would be excluded inasmuch as Alexander's "nodding" after each question posed to him by Detective Schneider might not have been an adequate enough indication of an intention to waive his Miranda rights.*fn5 The second statement, that which was made to Detective Cambridge immediately following the initial statement to Detective Schneider, was not introduced by the prosecution during its case-in-chief, and the state trial judge refused to allow the statement to be introduced at the end of the government's case inasmuch as Justice Mollen found that Alexander could not, at that point anyway, have conducted an effective cross-examination. However, the third statement, the statement made to Assistant District Attorney DiBenedetto, was received. On March 3, 1972, Alexander was convicted, as charged, of the felony murder and, as a result of his conviction, was eventually sentenced to a prison term of 20 years to life. The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment of conviction in a short Per curiam decision, See People v. Alexander, 45 App.Div.2d 1023, 358 N.Y.S.2d 68 (2d Dep't 1974), confining its discussion to Alexander's contention that he had not waived his right to counsel at the time he spoke to the assistant district attorney. Rejecting the claim, the Appellate Division expressly ruled that DiBenedetto's nonresponsive answer had not been coercive or deceptive and the court therefore concluded that the answer did not impact upon what was otherwise a clear waiver of Alexander's right to counsel. On October 25, 1974, the New York Court of Appeals denied leave to appeal.
On February 11, 1975 Alexander filed with the United States District Court for the Western District of New York a Pro se petition seeking the issuance of a writ of habeas corpus. In February 1976 counsel was appointed to represent Alexander and an amended habeas corpus petition was filed with the district court on March 24, 1976. After an independent review of the transcript of the Huntley hearing, the trial transcript, the briefs and other records of trial and appeal, United States District Judge John T. Curtin, in a decision dated November 4, 1977, concurred in the state trial court's findings. Judge Curtin recognized that the findings of the state court are presumptively correct and, inasmuch as his own review of the record of the Huntley hearing had not disclosed any reason for ignoring the state trial court judge's determinations, the federal district judge accorded them the standard deference to which they are statutorily entitled; indeed, Judge Curtin indicated that Justice Mollen's findings were amply supported by the record made during the Huntley hearing. Judge Curtin thus concurred in the state trial judge's conclusion that under the "totality of the circumstances" test, Alexander's statements were neither coerced nor obtained by means of physical violence. Accordingly, Judge Curtin determined that no purpose would be served by holding a further evidentiary hearing in the federal court to determine whether Alexander's statements had been extracted from him through the use of physical coercion. The federal district judge also determined that the state trial court was correct in its ruling regarding the exclusion of the testimony that would have been given by Alexander's wife. Judge Curtin also seems to have accepted as true the facts to which Alexander claims German would have testified. Finally, the district judge rejected all of Alexander's claims based upon alleged abridgements of his fifth and sixth amendment rights.
Following Judge Curtin's issuance of a certificate of probable cause, Alexander filed a notice of appeal from the district court's decision denying the petition for the issuance of a writ of habeas corpus.
Alexander advances two grounds upon which he claims the state trial court judge should have suppressed his third confession. He argues first that that confession was inadmissible on fifth amendment grounds because it was involuntary, and he contends, in the alternative, that it should have been excluded on sixth amendment grounds since it was procured in derogation of Alexander's right to counsel. We discuss these claims seriatim.
Alexander's claim that his third confession was involuntarily extracted from him in violation of his fifth amendment rights need not detain us long. In his detailed findings of fact and conclusions of law the state trial judge explicitly found that under the totality of the circumstances Alexander's confession to Assistant District Attorney DiBenedetto was voluntary. This finding of fact is, of course, entitled to a presumption of correctness, 28 U.S.C. § 2254(d); Accord, Tanner v. Vincent, 541 F.2d 932, 937 (2d Cir. 1976), Cert. denied, 429 U.S. 1065, 97 S. Ct. 794, 50 L. Ed. 2d 782 (1977), unless one of the eight exceptions specified in 28 U.S.C. §§ 2254(d)(1)-(8) can be shown to exist or unless Alexander can bear "the burden of establishing by Convincing evidence that the findings of fact by the state court are erroneous." Tanner v. Vincent, supra, 541 F.2d at 937 (emphasis supplied). Alexander does not predicate his appeal on a direct attack to any substantial extent on Justice Mollen's finding of voluntariness. Instead, relying upon three of these eight exceptions Alexander argues that the state trial court's finding that his third confession, the one given to the state prosecutor, was a voluntary confession should not be presumed to be a correct finding. First, Alexander contends that, inasmuch as the state trial court judge made no specific and explicit finding that the third confession was not fatally "tainted" by the first confession, "the merits of the factual dispute were not resolved in the State court hearing." 28 U.S.C. § 2254(d)(1). Second, he asserts that he was not afforded a full and fair hearing in the Huntley hearing conducted by the state court, See 28 U.S.C. §§ 2254(d)(2), (6), because the state trial court judge refused to reopen that hearing to allow Alexander's wife and father-in-law to give the testimony to which we have already referred.
We find that these exceptions to the presumption of correctness do not apply here. Alexander places himself between the proverbial rock and a hard place in attempting to capitalize on the state trial court's failure to make a specific finding (as a prelude to its finding that Alexander's third confession was voluntary) that the third confession was not tainted by the initial statement given to Detective Schneider. On the one hand, if the claim that there was a fatal taint constitutes a separate and distinct claim (apart from the more general claim that his confession was involuntary) upon which an explicit finding should have been made in order for the state trial court's determination to be entitled to the statutorily prescribed presumption of correctness, then Alexander may not present this issue to us because it was not presented as a distinct claim in either the state courts or in the federal district court below. As to the failure to preserve the claim in the state courts, the claim would not have been exhausted, United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir. 1970), Cert. denied, 401 U.S. 980, 91 S. Ct. 1214, 28 L. Ed. 2d 331 (1971); as to the latter failure, we sit as an appellate court to review the actions of the federal trial courts and we do not consider claims not raised below. Jennings v. Casscles, 568 F.2d 229, 233-34 (2d Cir. 1977); United States ex rel. Springle v. Follette, supra, 435 F.2d at 1384. On the other hand, if as is more likely, the "taint" claim is not a separate claim at all but is, instead, a claim encompassed within the broader claim that the third confession was involuntarily given, then the issue of possible taint must have been subsumed within the broader issue of whether Alexander's confession to DiBenedetto was voluntary, and we have no reason to doubt that the state trial court judge, in adhering at trial to his pretrial ruling that the Third confession Was voluntary, did so rule while being fully cognizant of the well-recognized principles proscribing prosecutorial use of the fruit of the poisonous tree. In this connection we note that even if Alexander's first statement to the police officers on the morning of the 8th of September was taken in violation of his Miranda rights, which the state trial court judge somewhat cryptically intimated was not so,*fn6 the third confession Could nonetheless still be voluntary in view of the totality of the circumstances, See, e.g., Tanner v. Vincent, supra, 541 F.2d at 936; Jennings v. Casscles, supra, 568 F.2d at 232-33, and, under these circumstances we would hold, if need be, that the confession given to the state prosecutor was indeed a voluntary one despite what we may assume Arguendo was Alexander's earlier ineffectual waiver of his Miranda rights.
We also reject Alexander's claim that we should ignore the presumption of the correctness of the state court's findings inasmuch as the state court supposedly did not afford Alexander a full and fair hearing on the issue of the voluntariness of his confession to DiBenedetto. The state trial court judge found, Judge Curtin agreed with him, and we agree with both of them, that Mrs. Alexander's proposed testimony, which would have been confined to a statement that she had observed her husband being beaten at the time of his arrest at their apartment, would not have affected the judge's conclusion that the third confession was voluntarily given. In view of her obvious bias and because Alexander and Smith had already testified to that very thing, it is clear that her testimony had no substantial probative value on the question of whether the police had physically abused Alexander at the time of his arrest. With reference to German's proposed testimony that the desk sergeant at the 73rd Precinct denied that Alexander was being held there, it is true that such testimony conceivably might have been of somewhat more utility in establishing Alexander's case than Mrs. Alexander's testimony would have been, since it could have been taken as some possible indication that the police were intentionally and malevolently attempting to conceal Alexander's whereabouts so that they could "drill him" until he had confessed. Yet, Justice Mollen, the state trial court judge presiding at Alexander's suppression hearing and trial, clearly stated that in the context of the other substantial evidence before him, German's proposed testimony would not have affected his ultimate conclusion that the third confession was voluntary. Although we do not agree with the state court judge that German's testimony that the desk sergeant denied that Alexander was at the 73rd Precinct stationhouse would have been hearsay,*fn7 the state judge, despite his belief that the evidence would be inadmissible, did alternatively determine that German's testimony would not, in any event, have affected the judge's conclusion that Alexander's statement to DiBenedetto was voluntary. In view of Justice Mollen's careful marshaling of the evidence on the issue of whether Alexander's third confession was voluntary, and in view of the deference which we are statutorily required to pay to the state court's findings of fact, we must conclude that there is no ground here for our disputing the state court judge's conclusion that German's testimony would not have affected the ultimate result the judge reached as to whether Alexander's third confession was voluntary.
Finally, we note that there is ample evidence in the record of the Huntley hearing to support Justice Mollen's ultimate finding of fact that Alexander's statement to the assistant district attorney was voluntary. To be sure, Alexander testified that he had been physically abused by the police officers while being held at the stationhouse, but Justice Mollen specifically found that Alexander, whom the judge diagnosed as being afflicted with "selective amnesia," was not a credible witness. And, of course, the state court judge, sitting as the assessor of the credibility of witnesses and as the finder of fact, was indeed entitled to discredit Alexander's testimony and that of any other witness and hence to find, as he did find, that Alexander had not been subjected to any physical abuse, either upon his arrest or at any time during his detention at the 73rd Precinct stationhouse. Absent any physical violence there are still some potentially troubling aspects to a just resolution here. Nevertheless, what the record as a whole seems to disclose is that while Alexander was not enjoying the accommodations or amenities that a visiting foreign dignitary might expect as a public guest, his ordeal at the stationhouse was apparently not so severe that he could not give voluntarily a comprehensive and coherent confession to Assistant District Attorney DiBenedetto after 12 or 13 hours in custody. We must also keep in mind that our role here, as an appellate court, is more limited than that of the federal district court which, in turn, must play a more limited role in this collateral proceeding than it would if it were hearing the evidence and finding the facts on a truly De novo basis. We therefore hold, as did Judge Curtin, that under the circumstances here the state court's determination that Alexander's third confession was voluntary is entitled to the usual presumption of correctness and, in view of the lack of any convincing countervailing evidence, Tanner v. Vincent, supra, 541 F.2d at 937, we agree that that determination was correct.
We turn now to Alexander's contention that his third confession should have been suppressed because it was extracted from him in violation of his sixth amendment right to counsel. Relying upon Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), Alexander claims that his "being held incommunicado violated his sixth amendment right to counsel." He further contends, placing substantial reliance on the recent case of Brewer v. Williams, 430 U.S. 387, 397-98, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), that under the circumstances surrounding his detention on September 8 the state cannot demonstrate that Alexander voluntarily waived his right to counsel. In his decision below, however, Judge Curtin found, as did the Appellate Division of the Supreme Court of the State of New York, See People v. Alexander, 45 App.Div.2d 1023, 358 N.Y.S.2d 68 (2d Dep't 1974), on Alexander's direct appeal from his conviction in state court, that Alexander had not been deprived of his sixth amendment right to counsel. On the basis of the findings made by the state trial court judge and also on the basis of the record of the suppression hearing in the state trial court, it would be difficult to reach any other conclusion.
Justice Mollen made several specific findings of fact which we find are pertinent to our consideration of Alexander's claimed sixth amendment violation and which are entitled to the usual presumption of correctness. In particular, the state trial judge found that before each of his confessions on the 8th of September, Alexander had been carefully and fully apprised that he had a right to talk to a lawyer, to have a lawyer present during the police interrogation and to have a lawyer appointed to represent him if he could not afford a lawyer. Moreover, while at the stationhouse, Alexander was advised that he had a right to make a phone call. It is, moreover, evident from the record that Alexander understood that he had a right to consult with an attorney and that he voluntarily relinquished that right. For instance, when arrested and taken to the stationhouse, Alexander was not in an atmosphere completely foreign to him, for by his own admission he had been arrested on a number of previous occasions. At the suppression hearing in state court Alexander admitted, furthermore, that on the day he was apprehended he understood his rights. Yet, despite his knowledge of the constitutional rights he possessed, Alexander, whom the state trial judge found had not been subjected to any coercion at any time while he was at the stationhouse, never requested consultation with an attorney. Instead, on three occasions he voluntarily made incriminating remarks and, in view of his extremely detailed and precise responses during the third confession, it seems clear that, as Justice Mollen specifically found, Alexander "had no problem whatsoever in knowing what he was saying; he spoke with clarity which would indicate that there was no merit to defense contentions made during the course of the hearing that the defendant, either because of his drug habit or for any other reason, was unable to understand the proceedings."
Alexander's reliance on Escobedo to support his theory that his sixth amendment rights were violated inasmuch as he was held "incommunicado" and prevented from seeing his attorney is clearly misplaced, for the facts in Escobedo are a far cry from the facts present here which we have already outlined. Specifically, Escobedo had already retained an attorney prior to his interrogation at the stationhouse. The police, however, refused to permit Escobedo to speak to his previously retained attorney despite the fact that the lawyer was at the stationhouse and was requesting to speak to his client and notwithstanding the defendant's request, repeated at numerous times during the course of his interrogation, to speak to his attorney. Moreover, while Escobedo was repeatedly requesting to see his attorney, Escobedo's interrogators audaciously told him that his attorney "didn't want to see him." 378 U.S. 478 at 481, 84 S. Ct. 1758, 12 L. Ed. 2d 977. Finally, the police did not advise Escobedo of his constitutional right to consult with counsel prior to making any statements and to have counsel present while he was being interrogated. Here, although, concededly, there was an unfortunate mix-up at the 73rd Precinct stationhouse when Alexander's father-in-law was told by the desk sergeant that Alexander was not there, Alexander's wife Had been told where he was being taken. And in contrast to the facts in Escobedo at no time from Alexander's arrival at the stationhouse until his confession to DiBenedetto later that evening did any attorney appear at the stationhouse or call the stationhouse requesting to speak to Alexander; Alexander, while in detention, was repeatedly and carefully warned of his constitutional right to counsel and, most significantly, at no time before or during his various discussions with the police officers or the prosecutor at the stationhouse did he, despite his undeniable familiarity with his right to counsel, protest that he wished to consult with an attorney. To be sure, as have the courts who have previously dealt with this case, we surely do not commend or condone all the actions of the state prosecutor or of the local police, such as the arresting officers' failure to inform the desk sergeant at the 73rd Precinct that Alexander was being held there. Yet, our dissatisfaction with some of these specific, yet isolated, objectionable acts of the police or the prosecutor does not inevitably lead us to conclude, and we do not conclude, that Alexander was being held "incommunicado."
The facts here belie any claim by Alexander that he did not waive his right to counsel. We do not agree that the circumstances surrounding Alexander's detention and interrogations are similar enough to those in Brewer v. Williams for that recent Supreme Court decision to be of any assistance to Alexander here. There, the Supreme Court refused to find that, in the context of an egregious police interference with an existing attorney-client relationship, a waiver of the right to counsel had occurred. Again, a comparison of the circumstances there with those here is instructive and shows that in no way are the two situations comparable. There, where judicial proceedings against the defendant had already commenced, the defendant, who was a recent escapee from a mental institution, had even prior to his arrest been consulting regularly with counsel; in fact, it was the attorney who had advised the defendant to surrender in the first place. Moreover, the police not only knew that the defendant was represented by counsel (indeed, two attorneys were advising him) but the police had actually agreed with the defendant's principal attorney that they would not question the defendant unless counsel were present. Despite this express agreement, and notwithstanding the defendant's express and implied assertions of his right to counsel during the time he was alone with the police, one of the police officers admitted that the police deliberately began to manipulate the defendant so that he would make as many incriminating remarks as possible before speaking to his attorney. The facts surrounding Alexander's detention at the 73rd Precinct stationhouse do not, to put it simply, even begin to approach the affirmative and inexcusable police disregard of an existing attorney-client relationship that was so evident in Brewer. With full knowledge of his right to consult with an attorney, Alexander of his own free will chose, for whatever reason, to abstain from any exercise of that right and he must now accept the consequences of that entirely volitional decision.
We thus conclude that the record here, and the detailed and specific findings of fact which the state trial court judge made on the basis of that record, establish to our satisfaction as they also established to the satisfaction of the federal district judge below that Alexander's motion to suppress his confession to Assistant District Attorney DiBenedetto was properly denied. The confession was uncoerced and so was Alexander's decision to make that confession without benefit of prior or contemporaneous consultation with counsel.
(Alexander) A. (answer continued) Pop your questions.
Q. Sam, on August 24, 1971, a few weeks ago were you at a Bohack Supermarket somewhere in Brooklyn? A. August 24th, I don't know if that's the correct date or not. I do know I was in Bohack Supermarket. I don't know if it was the 24th, 25th, or 23rd.
Q. Where was this Bohack Supermarket located? A. Brooklyn, Flatbush section.
Q. Tell me who you were with and how you got there? A. There was three other ...