Appeal from the grant of a writ of habeas corpus by the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) on the ground that the disbarment of petitioner's counsel during a pretrial suppression hearing resulted in the denial of petitioner's sixth amendment right to effective assistance of counsel under Solina v. United States, 709 F.2d 160 (2d Cir. 1983). Reversed and remanded.
Van Graafeiland, Winter and Mahoney, Circuit Judges.
In Solina v. United States, 709 F.2d 160 (2d Cir. 1983), we held that a criminal defendant is denied his sixth amendment right to effective assistance of counsel when, unbeknownst to the defendant, he is represented by unlicensed counsel. This appeal raises the question whether Solina applies when a defendant's counsel is disbarred during a pretrial proceeding but withdraws after becoming aware of the disbarment.
Petitioner Robert B. Waterhouse is under a sentence of death in Florida for first-degree murder of Deborah Kammer in 1980. Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 464 U.S. 977, 78 L. Ed. 2d 352, 104 S. Ct. 415 (1983). Two of the five aggravating factors that justified imposition of the death sentence concern a prior encounter Waterhouse had with the New York legal system. The first was Waterhouse's previous conviction in a New York court for second-degree murder, a crime of violence. The second was that Waterhouse was still on parole for the New York murder, and therefore under a sentence of imprisonment, when he murdered Deborah Kammer. He had been paroled in 1975. On December 19, 1986, Waterhouse filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) in the Eastern District seeking vacatur of the New York conviction as part of a collateral attack upon the Florida death sentence. His petition set out three claims. The first and second alleged that a confession used against him was coerced and that his guilty plea was involuntary. Judge Glasser granted the writ on Waterhouse's third claim, which asserted that the disbarment of Waterhouse's counsel during a pretrial suppression hearing resulted in the denial of Waterhouse's sixth amendment right to effective assistance of counsel under Solina. Waterhouse v. Rodriguez, 660 F. Supp. 319 (E.D.N.Y. 1987).
On appeal, respondents argue that Waterhouse's failure to raise his sixth amendment claim either at trial or in his appeal to the Appellate Division precludes a finding that he has exhausted this claim in the state courts. In the alternative, they contend that, even if the claim is deemed exhausted, Solina does not apply in the circumstances of this case and that the petition should be dismissed on the merits. We hold that Waterhouse exhausted his sixth amendment claim but that Solina does not apply on the facts of this case. Accordingly, we reverse and remand.
At about 8:15 p.m. on February 11, 1966, the nude body of Mrs. Ella Mae Carter, a 76-year old resident of Greenport, New York, was found lying across her bed. She had multiple injuries on her head and body and had been strangled. When Waterhouse arrived home sometime after 1:00 a.m. on February 12, he found a message that the police wanted to speak to him. Accompanied by a family friend, Kenneth Norwood, he voluntarily arrived at the Greenport police station at approximately 2:00 a.m. Sometime later, Norwood was told to leave. After questioning Waterhouse about Mrs. Carter's death for approximately one hour, the police became concerned about the number of people passing through the station who could look through a window into the room in which they were interrogating Waterhouse. They decided, therefore, to take him to the Seventh Squad detective office in Riverhead, a half hour ride from Greenport. The questioning continued during the ride, except for a fifteen minute period during which Waterhouse appeared to have fallen asleep.
Sometime after arriving in Riverhead, Waterhouse confessed to the killing. A confession was then typed out, which Waterhouse signed after initialing some corrections. The second paragraph of the confession stated "I have been advised that I do not have to give a statement, but I would like to cooperate and give this statement. I do not want a lawyer now but would like to have one when I go to court." Waterhouse signed the confession at approximately 6:00 a.m. on the morning of February 12, 1966. He was then arrested and charged with first-degree murder.
Waterhouse's first lawyer, Edward LaFreniere, obtained a pretrial " Huntley hearing," see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), before Judge McInerney of Suffolk County Court, to determine whether Waterhouse's confession had been coerced. At the hearing, four police officers testified for the state, while Waterhouse was the only witness called by the defense. During cross-examination of a police witness, LaFreniere referred to Norwood, who was in the courtroom, but did not call him as a witness. LaFreniere engaged in extensive cross-examination of the police witnesses, made numerous objections, took timely exceptions to adverse rulings, and brought out on direct examination of Waterhouse a version of events contradicting that offered by the prosecution.
According to the police, Waterhouse was informed of his right to counsel and his right to remain silent when he first arrived at the Greenport station and at several other times during his interrogation. The police denied making any threats or promises and stated that Waterhouse had told them he wanted to cooperate. They testified that Waterhouse repeatedly declined representation, declaring that he wanted a lawyer only when he went to court.
Waterhouse painted a different picture. He testified that he was intoxicated when he arrived at the police station. He claimed that the police had failed to advise him of his right to counsel and that he had repeatedly asked for, and was denied, an opportunity to call an attorney or family member. He denied he had fallen asleep during any portion of the trip to Riverhead. He claimed instead that he had merely closed his eyes for a while and that during this time he had heard the police planning to coerce a confession from him. He said he was physically threatened by the police and confessed only after having been forced to sit naked for two-and-one-half hours in a metal chair. He admitted signing the confession but did not recall initialing any corrections. Only after he had signed the confession was he allowed to dress and to make a phone call.
In rebuttal, police witnesses denied the pertinent portions of Waterhouse's testimony. They reiterated that they had several times advised him of his rights and had even offered to contact the public defender for him. They stated that there was no indication that Waterhouse was drunk but that he did appear to fall asleep about halfway to Riverhead. They conceded that he was told to remove his clothes so the officers might determine whether he had bruises in addition to observable facial scratches. After five minutes, he was allowed to dress.
After the Huntley hearing concluded on the morning of November 15, 1966, Judge McInerney found beyond a reasonable doubt that the facts were as the police had described and that the confession was admissible because "as a matter of law . . . the defendant knowingly, intelligently and voluntarily waived his rights." Jury selection was scheduled to commence shortly thereafter. Instead, the court declared a mistrial when it learned that LaFreniere, who had been a member of the New York bar since 1934, had been disbarred for misappropriating client funds and for failing to represent clients after accepting fees. See Suffolk County Bar Ass'n v. LaFreniere, 26 A.D.2d 946, 274 N.Y.S.2d 656 (2d Dep't 1966), appeal dismissed, 19 N.Y.2d 809, 279 N.Y.S.2d 967, 226 N.E.2d 700, motion denied, 19 N.Y.2d 920, 201 N.Y.S.2d 105, 227 N.E.2d ...