(McKinney 1983). Petitioner was sentenced on April 16, 1980 to
concurrent prison terms of from 8 1/3 to 25 years on the Rape
and Sodomy counts and 4 to 12 years on the Assault count.
Three months after his conviction, petitioner was adjudicated
mentally ill by a Maine superior court.
On October 14, 1982, petitioner, represented by new counsel,
filed an appeal to the Appellate Division. In his appeal,
petitioner claimed that the trial court had erred by not
suppressing his statements after an improper Miranda warning,
that he had not received a fair trial, and that he should be
resentenced because there had not been a complete pre-sentence
report and no psychiatric evaluation of the petitioner had been
undertaken prior to sentencing. On March 13, 1984 the Appellate
Division, First Department, affirmed petitioner's conviction.
People v. Rollins, 99 A.D.2d 1032, 472 N.Y.S.2d 794 (1st Dept.
1984). Leave to appeal to the Court of Appeals was denied on
May 18, 1984.
On August 7, 1986, petitioner filed a petition for a writ of
habeas corpus in the United States District Court for the
Northern District of New York. On October 22, 1987, the
District Court dismissed the petition for failure to exhaust
state remedies. On July 17, 1987, petitioner filed a motion to
vacate judgment of his conviction pursuant to New York
Criminal Procedure Law § 440.10 on the grounds that he was not
afforded effective assistance of counsel and that his guilt was
not established beyond a reasonable doubt. On September 23,
1987, Justice Greenfield, in a written decision, denied
petitioner's motion. People v. Rollins, Indictment No. 4364/78,
slip op. (Sup.Ct. N.Y. County Aug. 7, 1987). On July 7, 1987,
the Appellate Division, First Department denied petitioner
leave to appeal Justice Greenfield's decision.
Petitioner contends that the first set of Miranda warnings he
received were improper. Specifically, he claims that he was
never advised that anything he said could be used against him.
Petitioner further argues that he never voluntarily waived his
rights and that the officers should not have continued to
question him after he failed to respond when asked if he
understood the warnings.
We decline to decide whether Detective Reid's failure to
advise petitioner that anything he said could be used against
him rendered his confession inadmissible. Instead, we hold
that the admission of the first confession, which followed an
incomplete Miranda warning, was harmless beyond a reasonable
doubt, whether or not the first confession was admissible. In
United States v. Tucker, 415 F.2d 867, 869 (2d Cir. 1969),
cert. denied, 397 U.S. 955, 90 S.Ct. 986, 25 L.Ed.2d 139
(1970), the Second Circuit held that the admission of an
allegedly unconstitutionally obtained confession, in light of
the other evidence of a defendant's having committed a bank
robbery, was harmless beyond a reasonable doubt. After
declining to consider Tucker's many arguments that his
confession was illegally obtained, the court concluded that the
"overwhelming . . . unchallenged and unimpeached" evidence
which established Tucker's guilt, including an eyewitness
identification of him by a bank employee, testimony of both of
his accomplices who implicated him, and photographs of the
robbery taken by a hidden movie camera that showed him
committing the crime, was sufficient for the court to conclude
under the facts in that particular case that any error was
harmless beyond a reasonable doubt.
In the present case, Ms. Goldberg's detailed and convincing
testimony establishing that Rollins had committed the crime
and Rollins' admissible second confession is similarly
overwhelming, unchallenged and unimpeached evidence of his
guilt. As in Tucker, petitioner did not argue and could not
establish that his confession was obtained through trickery or
mental or physical coercion, as was the case in Payne v.
Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975
(1958). Therefore, we conclude that the admission of Rollins'
first confession was harmless beyond a reasonable doubt,
whether or not its admission was an error.
We reject the argument that if petitioner's first confession
was improperly obtained,
his second confession was tainted and therefore inadmissible.
In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d
222 (1985) the Supreme Court held that the Fifth Amendment does
not require the suppression of a confession solely because the
police had obtained an earlier unwarned confession, as long as
the unwarned confession was not the product of coercion. In
Elstad, the defendant was arrested on burglary charges and made
an incriminating statement without having received Miranda
warnings when police visited him at his home. After being taken
to the station house, the defendant was advised of his Miranda
rights, waived them and proceeded to confess. The Court held
that "a careful and thorough administration of Miranda warnings
serves to cure the condition that rendered the unwarned
statement inadmissible." Id. at 310-11, 105 S.Ct. at 1293-94.
The case before the Court differs from Elstad only in that an
incomplete warning was given before the first confession was
obtained and a longer period of time elapsed between the two
In Bryant v. Vose, 785 F.2d 364 (1st Cir.) cert. denied,
477 U.S. 907, 106 S.Ct. 3281, 91 L.Ed.2d 570 (1986), the First
Circuit, citing Elstad, held that a voluntary oral confession
obtained after a partial Miranda warning did not preclude the
admission of a second written confession obtained after full
Miranda warnings. In Bryant, a suspect in a homicide
investigation was visited by the local police chief at his
home, and before he confessed, was told "that he did not have
to talk and that anything he said could be used against you."
Id. at 366. Bryant was then taken to the police station, given
proper Miranda warnings, and signed a written confession. The
Court found that Bryant's first confession was given
voluntarily, and held that the second confession, which was the
product of proper warnings and was voluntarily given, was
In the present case, Rollins was given a partial
Miranda warning and subsequently confessed. He was then taken
into the hallway and given proper Miranda warnings, and he
confessed again. Since we do not read Elstad and Bryant as
suggesting that the length of time between the two confessions
was a factor in the Courts' decisions, we hold that
petitioner's first confession did not taint his second
confession if both confessions were voluntary.
We turn our consideration to the voluntariness of the
confessions. Whether a confession is voluntary turns on the
"totality of the surrounding circumstances." Green v. Scully,
850 F.2d 894, 901 (2d Cir.), cert. denied, ___ U.S. ___, 109
S.Ct. 374, 102 L.Ed.2d 363 (1988). In applying this test a
court must take into consideration the characteristics of the
accused, the conditions of interrogation, and the conduct of
the law enforcement officials. The relevant characteristics of
the person who confessed are his experience and background,
together with his lack of education or intelligence. The second
circumstance, the conditions of interrogation, include the
place and length of interrogation. The final circumstance is
the police officer's conduct. Facts bearing on this conduct
include the repeated and prolonged nature of the questioning,
whether there was any physical abuse of the suspect, the period
of restraint in handcuffs, and whether any psychologically
coercive tactics were used. See Green, 850 F.2d at 902.
After evaluating these factors in the present case, we hold
that the petitioner confessed voluntarily. Petitioner, a 36
year-old man, has had some previous experience with the
criminal justice system by virtue of his Maine arrest for
homicide. In addition, there is nothing in the record which
suggests a lack of intelligence on the part of the petitioner.
Petitioner was briefly interrogated by Maczaj in the hallway
the apartment building. There is nothing in the record that
suggests that these conditions were coercive in nature or that
the police officer attempted to trick, deceive or in any way
improperly coerce petitioner. Petitioner does not maintain
that the failure to advise him at first that what he said
could be used against him was anything more than an
inadvertent omission. In point of fact, nothing in the record
suggests that the officers did anything besides restrain the
suspect and calmly ask him a series of short questions, after
advising him of his right not to answer them. Thus, we
conclude based on an examination of the petitioner's
characteristics, the conditions of interrogation, and the
officers' conduct that petitioner's confessions were
voluntary, and his second confession was therefore properly
admitted by the trial court.
In his second claim petitioner asserts that he was not
afforded effective assistance by his trial counsel. We
conclude that habeas review of petitioner's ineffective
assistance of counsel claim is barred because the New York
Supreme Court "clearly and expressly" stated that its judgment
rested on a properly applied state procedural bar. In Arce v.
Smith, 889 F.2d 1271 (2d Cir. 1989), Arce's conviction was
affirmed by the New York Appellate Division and the New York
Court of Appeals, after the courts had rejected his claims of
prosecutorial misconduct and insufficiency of the evidence.
Arce then filed a petition in state court pursuant to Article
440 of the New York Criminal Procedure Law seeking to vacate
judgment of his conviction and raising his claim of ineffective
assistance of counsel for the first time. The New York Supreme
Court denied Arce's claim on the grounds that he had waived it
by failing to raise it on direct appeal. After a federal
district court dismissed Arce's petition for a writ of habeas
corpus on the grounds that he could not show any excuse for his
procedural default, the Second Circuit affirmed, finding that
"federal habeas review is precluded when the `last state court
rendering a judgment in the case "clearly and expressly" states
that its judgment rests on a state procedural bar.'" Arce, 889
F.2d at 1273, (quoting Harris v. Reed, ___ U.S. ___, 109 S.Ct.
1038, 1043, 103 L.Ed.2d 308 (1989)).
Petitioner, like Arce, first presented his ineffective
assistance of counsel claim in his Article 440 petition, but
failed to raise it on his direct appeal. The New York Supreme
Court denied Rollins' petition on procedural grounds, stating
that this claim "was a matter of record before the Appellate
Court." People v. Rollins, No. 4364/78, slip op. at 2, (Sup.Ct.
N Y County Aug. 7, 1987). Moreover, petitioner has not argued
and the Court sees no basis for concluding that petitioner
could establish cause and prejudice. Petitioner was afforded
new counsel for purposes of his initial appeal to the Appellate
Division, and he does not suggest that the record before the
Appellate Division was in any way inadequate for addressing the
ineffective assistance claim.
In his third claim petitioner contends that his competence
to stand trial was never assessed by the trial court. The
Supreme Court has held that due process requires that "a
person whose mental condition is such that he lacks the
capacity to understand the nature and the object of the
proceedings against him, to consult with counsel, and to
assist in preparing his defense may not be subjected to a
trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896,
903, 43 L.Ed.2d 103 (1975). A trial court must order a hearing
sua sponte when there is "a `reasonable ground' for believing
that the defendant may be incompetent to stand trial."
Silverstein v. Henderson, 706 F.2d 361, 368 (2d Cir.), cert.
denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983).
Under federal law, the failure to conduct a full competency
hearing is not ground for reversal when the defendant appears
competent during trial, United States v. Vamos, 797 F.2d 1146,
1150 (2d Cir. 1986), cert. denied, 479 U.S. 1036, 107 S.Ct.
888, 93 L.Ed.2d 841 (1987) (citing United States v. Dunn,
594 F.2d 1367, 1372 (10th Cir. 1979), cert. denied, 444 U.S. 852,
100 S.Ct. 106, 62 L.Ed.2d 69 (1979)),
and a trial court's examination of a defendant's competency is
limited to an evaluation of defendant's abilities at time of
trial. Vamos, 797 F.2d at 1150. Under New York law, a trial
court need not order a competency hearing when it is satisfied
"from the available information that there is no proper basis
for questioning the defendant's sanity." People v. Armlin, 37
N Y2d 167, 171, 371 N.Y.S.2d 691, 332 N.E.2d 870 (1975). This
is the case even when the defendant has "a history of mental
problems." People v. Sterling, 72 A.D.2d 611, 613, 421 N.Y.S.2d
121, 122 (2d Dep't 1979).
The strongest argument in petitioner's favor is that facts
within the trial court's knowledge were sufficient for the
court to have concluded that petitioner's competency was in
question. At the time he committed the offenses and at the
time of trial, petitioner was an escapee from a state mental
hospital in Maine. Petitioner also points out that he was
adjudicated mentally ill by the Maine Superior Court three
months after the trial in New York commenced.
In his August 7, 1987 decision denying petitioner's motion
to vacate judgment, Justice Greenfield noted that petitioner
had attempted to raise the question of mental capacity. In
responding to petitioner's argument, Justice Greenfield
described his observations with respect to petitioner's
competency as follows:
There was no indication in the proceedings before
the court the defendant lacked the capacity to
assist in his defense. He in fact, took the stand
and testified that far from being the attacker,
he had actually come to the rescue of the
complainant (sic) who unaccountably accused him.
There was no indication of any mental infirmity
as he attempted to interpose this defense . . .
this court concluded that defendant was mentally
fit to stand trial, and in attempting to shift
the blame . . . he indicated a craftiness and
guile which belied his present claim of
People v. Rollins, slip op. at 2-3, (Sup.Ct. N.Y. County Aug.
7, 1987). Justice Greenfield's findings were based upon what
was obviously a careful examination of petitioner's behavior.
Under 28 U.S.C. § 2254(d) a federal habeas court must give
deference to the findings of a state court and must presume
that these findings are correct unless they lack "fair support"
in the state record. 28 U.S.C. § 2254(d); See also Maggio v.
Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d
794 (1983). As trial judge, Justice Greenfield was in a unique
position to make such an evaluation, and this Court finds no
basis for disturbing his findings.
That petitioner was adjudicated mentally ill by the Maine
Superior Court three months after his trial is not dispositive
of his competence to stand trial in New York three months
earlier. The Court also presumes that Justice Greenfield
weighed the probative value of petitioner's status as an
escaped mental patient against his personal observations of
petitioner's ability to conduct his affairs in reaching his
conclusion concerning petitioner's competence.
This case differs from Silverstein v. Henderson, 706 F.2d at
369, where the Second Circuit found that the trial court's
failure to order a competency hearing violated the defendant's
right to a fair trial. In Silverstein, in addition to the
observations in the presentence report that the defendant had a
long history of institutionalization and had been diagnosed
earlier as both retarded and possibly schizophrenic, the trial
court was presented with the reports of three psychiatrists,
two of which concluded that he was not competent to stand
trial. Id. Here, in contrast, all the trial court was told was
that petitioner had escaped from a Maine mental institution.
Moreover, the absence of additional evidence no doubt stemmed
at least in part from petitioner's refusal to authorize the
state of Maine to release his records. The Court concludes that
Justice Greenfield sufficiently informed himself of facts from
which he could conclude that petitioner had the capacity to
understand the nature and the object of the proceedings against
him, to consult with counsel, and to assist in preparing his
For the foregoing reasons, Rollins' petition for a writ of
habeas corpus is denied. The Court finds probable cause for an