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May 3, 1979

Paul CANNISTRACI, Petitioner,
Harold J. SMITH, Warden of Attica Correctional Facility, Respondent

The opinion of the court was delivered by: CARTER

The petitioner, Paul Cannistraci, has applied to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a term of life imprisonment with a minimum of twenty-five years. This sentence was imposed by the Supreme Court, New York County, after a jury found Cannistraci guilty of murder. Petitioner asserts that three inculpatory statements were improperly admitted at trial in violation of his Fifth and Sixth Amendment rights, and the state now moves to dismiss the petition on three separate grounds. First, it argues that the petitioner's claims are not cognizable in a proceeding for collateral relief brought under the federal habeas corpus statute. Second, the state contends that the statements at issue were properly admitted as evidence at the trial. Finally, it is urged that the admission of the statements, even if erroneous, was harmless error. For the reasons that follow, the state's motion is granted and petitioner's application is dismissed.

Background *fn1"

 On April 27, 1973, Cannistraci, who was then using the alias "Robert Gasparre", left the Concord Hotel in Monticello, New York where he had been employed very briefly. Cannistraci, together with his friend Eric Egan, took a bus to New York City where they checked into a hotel along with Thomas King, who had also been employed at the Concord. Shortly after the three men had gone to their room, Cannistraci and Egan left the hotel, and five minutes later the desk clerk received a telephone call from "one of the men who were in 405." *fn2" The caller said that because Thomas King was a homosexual and had tried to engage in sex with them, the caller and his companion had tied King up and hit him over the head.

 The desk clerk called the police who found Thomas King in the hotel room, dead. His body was seated upright in the bathtub, wearing only a shirt and undershirt. He was bound by a cloth that was wrapped around his throat and tied to a pipe behind his head. An autopsy subsequently revealed that King had died from asphyxiation and that he had been unconscious before he was tied up. He had suffered a blow to the head with a blunt instrument, and his larynx had been crushed. An investigation of the scene uncovered a fingerprint that later proved to be Cannistraci's and a bus ticket that gave the police an important lead by suggesting that the perpetrators had recently left Monticello.

 When the investigation had focused on Cannistraci and Egan, Detectives Robert Ginivan and Bernard Boyd were assigned to apprehend petitioner. They intercepted him in the hallway of the Bronx County courthouse where he was waiting to appear in a matter unrelated to the murder of Thomas King. The detectives escorted Cannistraci to a nearby room and told him that he was under arrest for homicide. Detective Ginivan then recited the Miranda warnings to Cannistraci and asked if he wanted an attorney. Cannistraci replied, "I have nothing to say." *fn3"

 The detectives then placed Cannistraci in a patrol car in order to take him to their precinct headquarters in Manhattan. Boyd drove while Ginivan sat in the back seat with the suspect. During the ride, Cannistraci asked why the detectives had apprehended him at the courthouse before his case had been called. Detective Ginivan asked, "What's the difference?," and Cannistraci replied that he had enlisted a friend to answer the first calendar call for his case so that Cannistraci could see if there was anyone in the courtroom to "pick him up." *fn4" Petitioner claims that the admission of this statement at trial violated his constitutional rights.

 Cannistraci then asked who had turned him in. When Detective Ginivan replied that it had been Eric Egan, Cannistraci said, "I thought so, because there aren't too many people on the street that know my real name." *fn5" This is the second statement that the petitioner unsuccessfully sought to suppress. The detectives then asked a series of questions to which Cannistraci gave incriminating answers. The trial judge, however, found that these statements resulted from police interrogation after the defendant had invoked his right to silence, and he ruled these further statements inadmissible. *fn6"

 Upon arriving at the precinct headquarters, Cannistraci was again informed of his constitutional rights, this time by Detective Boyd. When asked if he would be willing to answer any questions without an attorney present, Cannistraci replied, "No." *fn7" Shortly thereafter in a conversation with Detective Boyd, Cannistraci acknowledged having worked in Monticello, but this statement was conceded to be inadmissible in light of the petitioner's stated desire not to be questioned in the absence of an attorney. *fn8" Cannistraci was then processed in connection with the homicide charge, and while this procedure was taking place, Detective Boyd asked the petitioner if he would be willing to speak with an assistant district attorney. To this Cannistraci replied that he would "cop out" if the prosecutor would agree to give him a three year sentence. *fn9" This is the third statement that Cannistraci claims was admitted at trial in violation of his constitutional rights. At the conclusion of petitioner's pretrial Huntley hearing, *fn10" Justice Aloysius J. Melia found that the statements about a stand-in and public ignorance of his identity had been volunteered in conversations that Cannistraci himself had initiated. *fn11" In addition, the court held that Cannistraci's offer to plead guilty if promised a three-year sentence was admissible, but no explicit reasons were given for this ruling. *fn12"

 At the conclusion of Cannistraci's trial, the jury found that he was not guilty of felony murder. See N.Y. Penal Law § 125.25(3) (McKinney). However, the jury did find him guilty of murder in the second degree for engaging in reckless conduct that caused the death by strangulation of Thomas King. *fn13" See N.Y. Penal Law § 125.25(2) (McKinney).

 After his conviction, Cannistraci commenced a direct appeal to the Appellate Division in which his counsel argued that the three incriminating statements at issue were the product of interrogation that was prolonged after Cannistraci had invoked his right to remain silent. The Appellate Division rejected this argument and affirmed the conviction, People v. Cannistraci, 54 A.D.2d 631, 387 N.Y.S.2d 399 (1st Dept. 1976), and the Court of Appeals denied leave to appeal. People v. Cannistraci, 40 N.Y.2d 1078, 392 N.Y.S.2d 1031, 360 N.E.2d 965 (1976); 41 N.Y.2d 864, 393 N.Y.S.2d 1031, 362 N.E.2d 629 (1977). Cannistraci then filed this Pro se petition for a writ of habeas corpus.

 Collateral Review of State Court Determinations

 The state has argued that the petitioner's claims are not cognizable in a habeas corpus proceeding. This contention is derived from Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), in which the Supreme Court held:


"(W)here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482, 96 S. Ct. at 3046 (footnote omitted).

 See also Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), Cert. denied, 434 U.S. 1038, 98 S. Ct. 775, 54 L. Ed. 2d 787 (1978). The state now seeks to extend Stone to the issues of self-incrimination and right to counsel raised in this case. The Second Circuit has thus far declined to apply Stone to violations of the Fifth or Sixth Amendments, See Wilson v. Henderson, 584 F.2d 1185, 1189 (2d Cir. 1978), and I am persuaded that the Supreme Court's rationale is apt only where issues of search and seizure alone are involved. However, for a full exploration of this question more space would be needed than is required to dispose of the issues going to the merits. As I am confident that we have jurisdiction and equally satisfied that the petition lacks merit, it seems a somewhat futile exercise in scholarship to address fully the jurisdictional question. Accordingly, I will proceed directly to the merits of the petition.

 Admissibility of Incriminating Statements

 1. Statements Made During Transit Fifth Amendment Issues

 While he was being transported from the Bronx courthouse where he was arrested to the precinct headquarters, petitioner made two incriminating statements that were admitted at trial: he acknowledged having a stand-in answer the first call of the court calendar so that he could see if anyone were there to apprehend him, and he admitted that few persons were aware of his true identity. I find that Justice Melia's conclusion was correct: these statements were volunteered and therefore admissible.

 The Fifth Amendment protects an accused from being compelled to testify against himself. In the absence of compulsion, the exclusionary rules developed to protect the right do not operate. Although in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Court recognized that the inherently coercive atmosphere of police custody could impel an accused to incriminate himself involuntarily, Id. at 460-61, 86 S. Ct. 1602, it also acknowledged that volunteered statements would continue to be admissible:


"Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated." Id. at 478, 86 S. Ct. at 1630.

 Consistent with Miranda, numerous cases have held that statements that are not the product of interrogation may be admitted. See, e.g., Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975), Cert. denied, 423 U.S. 1090, 96 S. Ct. 884, 47 L. Ed. 2d 101 (1976); United States v. Cook, 530 F.2d 145, 152 (7th Cir. 1975), Cert. denied, 426 U.S. 909, 96 S. Ct. 2234, 48 L. Ed. 2d 835 (1976); United States v. Martin, 511 F.2d 148, 150-51 (8th Cir. 1975); United States v. Tafoya, 459 F.2d 424, 427 (10th Cir. 1972). *fn14"

 Here, there is little doubt that the first two incriminating statements made by the petitioner were volunteered. Propelled by curiosity, the accused initiated a conversation with the arresting police officers by asking why they had not waited for him to answer the court's calendar call. The officer's response "What's the difference?" is surely in the form of a question, but it can hardly be characterized as interrogation. That the petitioner made an incriminating statement in response to this vague remark is hardly an indication that he was subject to compulsion in even the most minor degree. Similarly, Cannistraci initiated the second colloquy that resulted in his making an incriminating statement. He asked the officers who had informed on him, and, when told, he remarked that the informant was one of the few persons who knew his real name. In this instance, the police officer's comment to which the petitioner responded was not even in the form of the question, and again the incriminating statement was correctly found by the state court judge to have been volunteered.

 To say that the statements at issue here were volunteered is not, of course, a regression to the voluntariness test that governed the admissibility of all incriminating statements prior to the Supreme Court's decision in Miranda.


"(T)he Court held in that case that unless law enforcement officers give certain specified warnings before questioning a person in custody, and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary." Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S. Ct. 321, 324-325, 46 L. Ed. 2d 313 (1975).

 See also United States v. Miller, 432 F. Supp. 382, 389 (E.D.N.Y.1977). My conclusion here does not violate this principle because it is not based on a finding that the petitioner voluntarily responded to interrogation. *fn15" Rather, the first two statements in issue were not elicited in violation of the petitioner's Fifth Amendment rights because they were simply not the product of questioning by the police.

 2. Statement Made at the Precinct House Sixth Amendment Issues

 The petitioner's third statement presents a more difficult problem because it implicates Sixth Amendment rights. Prior to being "booked," the accused had been given his Miranda warnings and was asked whether he would be willing to talk without a lawyer present, to which he answered in the negative. Later, as the processing of the defendant drew to a close, an officer asked Cannistraci if he would be willing to speak to an assistant district attorney. In response to this, the defendant indicated a willingness to plea bargain.

 I find that Cannistraci's right to counsel had attached before he uttered the third incriminating statement. *fn16" Furthermore, the record cannot support a finding that petitioner waived his right to counsel before answering. *fn17" However, the Sixth Amendment is not violated unless the statements in issue are deliberately elicited. See Kamisar, Brewer v. Williams, Massiah, and Miranda : What is Interrogation? When Does It Matter?, 67 Geo.L.J. 1, 44, 65 (1978). Thus, the Supreme Court noted in Brewer v. Williams, 430 U.S. 387, 400, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), that the right to counsel would not have come into play in that case had the defendant not been interrogated. Similarly, the Second Circuit recently concluded in Wilson v. Henderson, supra, that the Sixth Amendment rights of a defendant were not violated when an informant was placed in his cell in the hope that the accused would spontaneously reveal the names of other participants in the crime. This decision was supported by the dual determination that the police neither intended to elicit incriminating remarks from the defendant nor instructed the informant to interrogate him. Id. at 1190-91.

 Deliberate elicitation can be demonstrated with either subjective proof of intent on the part of the police or objective proof relating to police conduct. In the instant case, both approaches support a finding that the police did not deliberately elicit Cannistraci's third incriminating statement. First, there is no evidence that Detective Boyd intended his question to result in the defendant making an incriminating statement. There has been no showing, as there was in Brewer v. Williams, supra, that the officer was knowingly using subtle psychological ploys to encourage the accused to confess.

 It would, of course, be unwise to place too great weight on the refusal of a police officer to admit that his questions were designed to pressure a defendant into incriminating himself. *fn18" Therefore, the court must look to the objective evidence and ask whether the officer's conduct might reasonably have been expected to result in the utterance of an incriminating statement. In the instant case the circumstances compel a negative answer. Detective Boyd simply asked Cannistraci if he wished to speak to an assistant district attorney. Although the accused had previously indicated that he did not wish to be questioned in the absence of an attorney, it now well-established that the police could at some later time determine whether he had changed his mind and was willing to waive his right to counsel. See Michigan v. Mosley, supra, 423 U.S. at 100-06, 96 S. Ct. 321; Wilson v. Henderson, supra, at 1187; United States v. Collins, 462 F.2d 792 (2d Cir. 1972). It may well be that a waiver in this case would have been ineffective because the police solicited it too soon after the defendant had first invoked his rights, thus giving him the impression that his rights would not be fully honored. See Michigan v. Mosley, supra, 423 U.S. at 102, 96 S. Ct. at 326; Wilson v. Henderson, supra, at 1188-89; Stone, The Miranda Doctrine in the Burger Court, 1977 Sup.Ct.Rev. 99, 130, 133, 136. But that issue need not be determined, since in any event the officer's question itself was not improper. It merely called for a yes or no answer. When the accused responded by expressing a willingness to plea bargain, he volunteered information that the question itself could not reasonably have been expected to elicit. Therefore, the defendant's incriminating statement was not the product of any violation of his Sixth Amendment rights. *fn19"


 Thus, the statements in issue were not the product of police interrogation, and therefore the petitioner's Fifth Amendment rights were not violated. Similarly, the statements were not deliberately elicited in violation of Cannistraci's Sixth Amendment rights. Rather, all of the statements were volunteered and therefore were properly admitted at trial.

 The state's motion is granted and the petition is dismissed.


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