Appeal from an order of the United States District Court for the Western District of New York, John T. Elfvin, Judge, granting a petition for a writ of habeas corpus unless petitioner receives a new trial within sixty days for the offenses for which he is currently imprisoned.
Oakes and Winter, Circuit Judges, and Clarie, District Judge.*fn*
This appeal is from a grant of a petition for habeas corpus under 28 U.S.C. § 2254 (1982) on the basis of the failure of police officers to cease interrogation under the strictures of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975); and the other decisions of the Supreme Court and this court involving the Miranda rules. In a bench trial in the New York Supreme Court, Erie County, the petitioner-appellee, Eugene Anderson, was convicted of felony murder (N.Y. Penal Law § 125.25(3) (McKinney 1975)), attempted robbery in the first degree (id. §§ 110.00, 160.15(2)), and possession of a weapon and dangerous instrument (id. § 265.02(4) (McKinney 1980) (prior to 1974 amendment codified as § 265.05(2)). After exhaustion of his state remedies, Anderson petitioned for habeas corpus in the United States District Court for the Western District of New York, John T. Elfvin, Judge. The district court concluded that petitioner's videotaped inculpatory statement had been elicited in violation of his rights under Miranda and Mosley and granted the application unless petitioner were afforded within sixty days a new trial in which the confession would not be admitted in evidence. That order was stayed by this court pending resolution of this appeal. We affirm.
In the early morning hours of November 19, 1971, Martin Grant, a taxicab driver, was shot near the corner of Jefferson Avenue and Northampton Street in Buffalo, New York. Grant had sustained three flesh wounds in his leg inflicted by a.22-caliber rifle and a fatal head wound from a.16-gauge shotgun.
Buffalo police arrived at the scene at about 2:20 a.m. and began an immediate investigation of the shooting. Homicide detectives received tips indicating that James Ward and Tyrone Powell had been responsible for Martin Grant's death. There was evidence in the trial that, since the death of Martin Grant, James Ward's street name has been changed from "Main Man" to "Sudden Death" and that both the.22-caliber rifle that wounded Grant and the.16-gauge shotgun that killed him belonged to James Ward.
James Ward was picked up on the morning of November 23, 1971, on suspicion of the killing. He and his girlfriend, Gladys Bracey, gave oral statements that same evening implicating his sixteen-year-old brother, Timothy Ward, and petitioner Anderson, age eighteen, and arranged with the police to cooperate in obtaining petitioner's arrest.
As a result, Anderson was arrested at Bracey's home about 11:30 p.m. on the evening of November 23, 1971, as were James Ward and Tyrone Powell. All were advised of their Miranda rights by one Sergeant Hunter, and all indicated that they understood those rights. At that time Anderson denied any knowledge of the crime. Anderson, James Ward, and Powell were taken to the homicide department, arriving at approximately 12:10 a.m. Anderson was taken directly to Lieutenant Donovan's inner office. During the next few hours, James Ward and Gladys Bracey each went into the inner office individually to speak privately with Anderson, Bracey having been informed by the police that she could help clear James Ward if Anderson confessed. Bracey later testified, "I told him that if he didn't tell them that he had did it, that I would." Soon, thereafter, Lieutenant Donovan went back into his own office with Sergeant Hunter and talked to Anderson, asking him whether he had "anything that you want to tell me now?" According to Sergeant Hunter's testimony, Anderson "slumped in his chair and he put his hand up . . ., and he said, 'I done it'. Lieutenant Donovan said, "You said what?" and he replied, he said, "I done it.'" At that time the officers indicated to Anderson that they wanted to put the interrogation on videotape, and at about 3:15 a.m. on November 24, 1971, the videotape interrogation began. Since the conduct of that interrogation is the essence of this case, it will be set out at some length.
First, Lieutenant Donovan read the Miranda rights to Anderson and asked if he understood them. He said that he did. The next three questions were:
Q. Now, having these rights in mind, do you wish to talk to us now?
Q. Do you want to talk to me now,
Lieutenant Donovan continued:
Q. You don't want to talk to me? Why?
A. I done told you already.*fn1
Q. Well, I told you I was going to give you an opportunity to talk for yourself, isn't that correct? Now, you have indicated to me that you got something that you want to say?
A. Did I say (unintelligible).
Q. I would like to have you repeat it. Sergeant Hunter from the Homicide Bureau is here, and I am here, and I would like to have you repeat this ...