Appeal from denial of petition of state prisoner for writ of habeas corpus in the United States District Court for the Southern District of New York, Charles H. Tenney, Judge. Affirmed.
Before Kaufman, Chief Judge, Smith and Feinberg, Circuit Judges.
This is an appeal from an order of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, denying Eric Carvey's petition for a writ of habeas corpus. Carvey is serving a prison sentence of 8 to 25 years after being convicted in New York Supreme Court, Bronx County, of sodomy, sexual abuse and sexual misconduct. He attacks his conviction on the ground that statements were admitted at trial which had been elicited from him by a state detective in violation of his right to counsel under the sixth and fourteenth amendments.
The district court found that Carvey waived his right to counsel before making the statements to the detective and upheld the conviction. We hold that the record does not support a finding of waiver. The detective's failure to advise Carvey that he had already been indicted rendered any waiver by Carvey ineffective, and the admission at trial of Carvey's statements to the detective was therefore constitutional error. However, we affirm the denial of the writ because we find that the error was harmless in the circumstances of this case.
The statements at issue were made by Carvey to Detective Gordon Krakower. Krakower first questioned Carvey on February 28, 1972, more than two months after Carvey was indicted on charges of sodomizing and sexually abusing a 12-year-old girl in Crotona Park in October, 1971. The questioning took place in the hallway, in the elevator and on the stairway of the Criminal Court Building in Manhattan, where Carvey was being held on an unrelated charge.
According to his undisputed testimony at trial, Krakower identified himself to Carvey and said he wanted to ask some questions about a sexual attack on a young girl in Crotona Park the preceding October. Krakower testified that before asking any questions, he "advised (Carvey) of his rights":
I told him that he does not have to make any statements to me but if he does make any statements, they can and would be held against him (and) that he's entitled to counsel, legal counsel, and if he could not afford counsel, that counsel would be provided for him and counsel would be available for every stage of the proceedings.
Krakower asked Carvey if he understood, and Carvey answered that he did. The detective then asked Carvey if he had been responsible for the October attack. Carvey replied that he had not been near Crotona Park during the month of October.
Krakower questioned Carvey a second time when he arrested him on March 25, 1972 at the Bronx House of Detention. Krakower advised Carvey of his rights in essentially the same words he had used at their first meeting, and Carvey again stated that he had not been near Crotona Park in October, 1971. Krakower also asked Carvey for permission to fingerprint him, and Carvey refused, adding, "You don't worry me, I could do 99 years standing on my head."
There is no suggestion in the record that Krakower ever informed Carvey that an indictment had been filed against him, nor that the detective had reason to believe Carvey knew about the indictment.
A person comes under the protection of the sixth and fourteenth amendment right to counsel from the moment judicial proceedings are initiated against him, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411 (1972). Statements elicited from the accused by the police after this point without the presence or aid of a lawyer may not be used against him at trial unless the state can show that he knowingly, voluntarily and intelligently waived his right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); United States v. Satterfield, 558 F.2d 655, 657 (2d Cir. 1976). In order to establish such a waiver, the state must meet the heavy burden of showing that accused understood his right to counsel and knowingly relinquished it; every reasonable presumption against waiver is to be indulged by the court. Brewer v. Williams, supra, 430 U.S. at 404, 97 S. Ct. 1232; Satterfield, supra, 558 F.2d at 657; United States v. Lord, 565 F.2d 831, 839 (2d Cir. 1977).*fn1
The record before us in this case does not support a finding of waiver. We conclude that Detective Krakower's failure to advise Carvey of the indictment pending against him, or to take reasonable steps to ascertain that Carvey knew of the indictment, precludes a finding that Carvey knowingly, ...