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Terry v. Lefevre

decided: November 23, 1988.

PATRICK TERRY, PETITIONER-APPELLANT,
v.
EUGENE S. LEFEVRE, AS WARDEN OF THE CLINTON CORRECTIONAL FACILITY, RESPONDENT-APPELLEE



This is an appeal from a judgment and order entered on May 9, 1988 in the United States District Court for the Eastern District of New York, Weinstein, J., which denied petitioner-appellant Patrick Terry's petition for a writ of habeas corpus. Affirmed.

Meskill, Kearse and Mahoney, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

Petitioner-appellant Patrick Terry appeals from a judgment and order entered on May 9, 1988 in the United States District Court for the Eastern District of New York, Weinstein, J., which denied his petition for a writ of habeas corpus.

Terry sought relief from a sentence imposed after he was convicted of murder in the second degree, N.Y. Penal Law § 125.25(2) (McKinney 1987), attempted murder in the second degree, N.Y. Penal Law §§ 110.00, 125.25(1) (McKinney 1987), and criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03 (McKinney 1980), following a jury trial before the Supreme Court of the State of New York, Queens County, Browne, J. A co-defendant, Donald Robertson, was acquitted of all charges. Terry received consecutive indeterminate prison terms of from twenty-five years to life on the murder conviction, eight and one-third to twenty-five years on the attempted murder conviction, and five to fifteen years on the possession of a weapon conviction. The Appellate Division reversed the attempted murder conviction and provided that the two remaining sentences run concurrently. People v. Terry, 104 A.D.2d 572, 479 N.Y.S.2d 278 (2d Dep't 1984). Leave to appeal to the Court of Appeals was denied.

Terry filed a petition for a writ of habeas corpus in the district court alleging, inter alia, that (1) his family's attempt to contact their attorney was frustrated, necessitating suppressing of his subsequent confession and the murder weapon which was recovered following the arrest, and (2) the murder weapon and confession were obtained as a result of promised and inducements by the police. In denying the writ, the district court held that "there was no violation of Miranda rights at all, nor was there a violation of any Sixth Amendment independent rights here." J. App. at 255. In addition, the district court held that "there was no coercion at all." Id. at 257-58. Judge Weinstein granted a Certificate of Probable Cause for an appeal.

For the reasons stated below, we affirm the district court's denial of the petition.

BACKGROUND

On September 26, 1979, several Black people were standing in front of a bar in Queens, New York when gunshots from a passing car were fired at the group. One person was killed and another was injured Based on several leads, the police suspected that Terry, who is White, was the assailant. On September 27, 1979, Terry was given his Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), and questioned by Detective James Donelan about the shootings. Terry denied any involvement in the incident. Subsequent investigating by Detective Donelan revealed that Terry had in fact been involved in the shooting.

On Saturday, September 29, 1979, at approximately 4:30 p.m., Detective Donelan and several police officers went to Terry's home, which he shared with his mother, a sister and her family. Terry was arrested and advised of his Miranda rights. He indicated that he understood each of those rights, and continued to proclaim his innocence. Terry and his mother signed an agreement consenting to a search of the premises, but the search failed to produce the murder weapon.

While the police were in the Terry home, Mrs. Terry started to look through a telephone book to locate the phone number of her attorney, Milton Jacobowitz. An unidentified police officer asked Mrs. Terry what she was doing. When she responded that she was attempting to reach an attorney, the officer said "[d]on't you know it's Saturday you can't reach him till Monday." Br. of Appellant at 5. Mrs. Terry then ceased attempting to call her attorney, but did call him at approximately 10:00 p.m. Saturday evening. Attorney Jacobowitz did not meet with Terry that evening, but agreed to meet Mrs. Terry the following day. By the following day, however, the critical events complained of on this appeal had already occurred.

Terry was taken to the police station and questioned late Saturday afternoon. At approximately 6:00 p.m., he agreed to appear in a police lineup without an attorney representing him. Two witnesses identified Terry as the assailant from this lineup.

Terry was later interviewed by Assistant District Attorney (ADA) Herold. Herold advised Terry of his Miranda rights, and Terry indicated that he understood his rights. The following exchange then occurred:

Herold: Now that I have advised you of all of your rights, are you willing to answer questions ...


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