504 N.Y.S.2d 548 (App. Div. 2d Dep't 1986); People v. Brigante, 125 A.D.2d 694, 510 N.Y.S.2d 19 (App. Div. 2d Dep't 1986). In Kuberka, which the Appellate Division remanded in May of 1995, no additional opinions have been published. All four of these cases illustrate the common sense principle set out in Mercado, which respondent cites for a different proposition and which addressed a slightly different issue. There, the Court of Appeals stated that a "threshold requirement" to reopening a suppression hearing is that the defendant "establish a factual predicate" for suppression either at the initial hearing or in the motion to reopen the hearing. Mercado, 478 N.Y.S.2d at 254. Although Mercado involved a change in the law rather than a change in the facts, the same minimal proffer of potential grounds for relief should, as a matter of judicial economy, be required before interrupting a trial to hold an evidentiary hearing. Rather than hide behind a procedural bar, respondent, as well as the Appellate Division, would have been well served to emphasize petitioner's failure to meet this threshold.
The net result of the inquiry into this procedural morass is that the procedural bar issue does not deserve the attention it has received. Cases applying § 710.40 exhibit a generous policy of reopening suppression hearings when it appears at trial that police officers did not tell the whole truth initially. At the very least, the general rule is to reopen the hearing where it appears that the new evidence would give petitioner at least some chance of prevailing on the merits. Moreover, the untruthful testimony of the police officers at the suppression hearing could constitute "cause" for failure to raise the right to silence issue earlier. In that event, petitioner would still have to show prejudice, which would again require some showing that petitioner's claim has merit.
In sum, if petitioner's claim had merit, the procedural bar could be overcome. This conclusion is consistent with what Justice Posner really did: decide that no additional evidentiary hearing was necessary but agree to consider the "right to silence argument" and to revisit it after the trial if defense counsel provided any legal support for his position.
2. The Merits
When a suspect invokes his privilege against self incrimination by attempting to cut off questioning, his request must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975); Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989) (holding confession inadmissible but upholding conviction under harmless error rule), cert. denied, 499 U.S. 949, 113 L. Ed. 2d 471, 111 S. Ct. 1419 (1991). This rule, however, "is not a per se prohibition against all further interrogation," and renewed questioning will be permitted in certain circumstances. Campaneria, 891 F.2d at 1021. In Mosley, for example, the Court emphasized that the initial questioning was brief and had been preceded by warnings, two hours elapsed before questioning resumed, and the interrogation was conducted by a different officer about an "unrelated" murder. See Mosley, 423 U.S. at 104-07.
The circumstances of petitioner's confession are similar to those in Mosley, though less troubling. Four hours elapsed between the first and second attempts to question petitioner. The first questioning was brief and stopped immediately after petitioner indicated he did not wish to speak to Carpenter. When Detective Bottari reinitiated contact with petitioner, he gave a complete set of Miranda warnings. Under these circumstances, the police honored petitioner's right to remain silent perhaps even more scrupulously than in Mosely.
Nor is this conclusion undermined by the fact that the questioning was with respect to the same crime. "Questioning about the same crime does not of itself prove bad faith or undue pressure on the part of the police, especially where, as here, there is a substantial period between interviews and the police immediately terminated the prior interview when the defendant invoked his right to counsel". Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985); United States v. Udey, 748 F.2d 1231, 1242 (8th Cir. 1984) ("this factor alone is not sufficient to find a violation"); Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988); United States v. Hsu, 852 F.2d 407 (9th Cir. 1988); Grooms v. Keeney, 826 F.2d 883 (9th Cir. 1987); United States v. Collins, 462 F.2d 792 (2d Cir.), cert. denied, 409 U.S. 988, 34 L. Ed. 2d 254, 93 S. Ct. 343 (1972).
Petitioner attempts to distinguish Mosley based on the fact that petitioner, unlike Mosley, did not receive any warnings before his initial questioning. Although the failure to give any warnings is a Miranda violation, the failure here should, as a practical matter, work against petitioner. When a suspect is told that he has a right to remain silent, invokes his right, but is then questioned again, the suspect would have reason to believe that any further attempt to invoke the right to remain silent would be fruitless. When, however, the first, and only, set of Miranda warnings is given at the start of the second attempt to question the suspect, the suspect has less reason to assume that the rights promised by the warnings will not be scrupulously honored. The absence of the initial warnings, therefore, makes it less likely that the subsequent confession was not voluntary.
Conversely, petitioner's case is distinguishable from Westover v. United States, decided together with Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), in which a defendant was questioned for several hours before receiving any advisory warnings and was then interrogated anew after receiving warnings. In those circumstances, the belated warnings were not sufficient to protect the suspect from coercion because "the warnings came at the end of the interrogation process." Id. at 496. As the Supreme Court recognized in Mosley, the "cardinal fact of Westover " was "the failure of the police officers to give any warnings whatever to the person in their custody before embarking on an intense and prolonged interrogation of him." Mosley, 423 U.S. at 107 (emphasis added). Although petitioner's situation resembles Westover's insofar as he received no initial warnings, like Mosley petitioner was permitted to end his initial questioning easily and completely. Given these facts and the common sense approach of Mosley, petitioner's claim that his right to silence was not scrupulously honored is without merit.
The right to silence cases should be distinguished from a different line of cases, cited by petitioner, holding that an initial coercive interrogation, not merely a question in violation of Miranda, can taint a subsequent interrogation even if the later interrogation would not, by itself, be coercive. See, e.g., United States v. Anderson, 929 F.2d 96, 102 (2d Cir. 1991) (suppressing second confession made shortly after defendant was tricked into giving initial confession). There is simply no evidence that petitioner's exchange with Carpenter so wore down his will so as to render his second confession involuntary. On the contrary, Carpenter's questioning was very limited, was conversational in tone, and stopped immediately when petitioner indicated he did not want to respond. In addition, because petitioner did not incriminate himself during the initial questioning, petitioner would not have thought "he has little to lose by repetition." Quartararo v. Mantello, 715 F. Supp. 449, 462 (E.D.N.Y.) (quoting Darwin v. Connecticut, 391 U.S. 346, 350, 20 L. Ed. 2d 630, 88 S. Ct. 1488 (1968) (Harlan, J. concurring in part and dissenting in part)), aff'd, 888 F.2d 126 (2d Cir. 1989).
Also distinguishable is Anderson v. Smith, 751 F.2d 96, 102 (2d Cir. 1984), in which the defendant invoked his right to remain silent after his initial questioning and after questioning resumed. Under those circumstances, the Court of Appeals for the Second Circuit held that even if, based on the initial questioning, the defendant "did believe that the police would respect his rights, he could hardly have maintained that belief in the face of [the police officer's] refusal to accept his silence" during the subsequent session. Id. Here, petitioner did not invoke his right to remain silent at the second interrogation.
Finally, the cases strictly enforcing a suspect's request for counsel are clearly inapposite. See, e.g., Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). In Edwards, the Supreme Court held that, although an accused may waive the right to remain silent by agreeing to answer questions, "additional safeguards are necessary when the accused asks for counsel." Id. at 484. In such cases, the accused, not the police, must be the one to initiate further questioning. Id. at 484-85. There is no evidence, however, that petitioner requested an attorney at any time after he was in custody. He did testify that he attempted to call his lawyer shortly after arriving at the police station, but he was not in custody at that time and it is also not clear that the police knew whom petitioner wished to call.
Petitioner correctly argues that resolution of the Miranda issue depends on the truth of the testimony of the police officers that he was not questioned between 11:00 P.M., when he was taken into custody, and 3:00 A.M., when he was advised of his rights and questioning was resumed. The record does present conflicting versions of the events between 11:00 P.M. and 3:30 A.M. It is not in serious dispute that petitioner was told he was under arrest at 11:00. Nevertheless, the critical evidence supporting the claim that petitioner then said he did not wish to speak came from Detective Carpenter. Petitioner did not testify that he invoked his right not to speak at 11:00 or that he was questioned after he asserted that right.
While petitioner testified that questioning resumed at 1:30 A.M., rather than 3:00 A.M., he admitted to confusion about the exact time. HD 38. On the other hand, each of the police officers denied that petitioner was interrogated. between 11:00 P.M. and 3:00 A.M., although the A.D.A. who arrived at the stationhouse at approximately 1:30 A.M. testified that "he believed" that Lt. Kelly, who was in charge of the investigation, told him that petitioner "had made some statements but they were continuing to talk to him." HA 20.
This testimony suggests that some witnesses may have been mistaken, confused or untruthful. Nevertheless, the issue was resolved against petitioner by the trial judge in his hearing opinion. Resp. Ex. B, at 6. The best that can be said from petitioner's standpoint is that the evidence was "inconclusive with respect to whether any police officer besides Carpenter questioned -- or attempted to question -- petitioner from the time he was admittedly in custody through the time he was finally read his Miranda rights at 3 A.M." Petitioner's Memorandum of Law, dated March 1, 1996, at 15 ("Petitioner's Memorandum"). Because the trial judge made his finding on this based on his view of the credibility of the witnesses at the suppression hearing, the "inconclusive" state of the record is insufficient to overcome the presumption of correctness which attaches to those findings. 28 U.S.A. § 2254(d)(8); see Wainwright v. Goode, 464 U.S. 78, 85, 78 L. Ed. 2d 187, 104 S. Ct. 378 (1983); Rushen v. Spain, 464 U.S. 114, 120, 121, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983) (both holding that where two conclusions find fair support in the record, the habeas court must not substitute its view of the facts for that of the state tribunal).
Nevertheless, petitioner argues that the trial judge should have reconsidered his findings of fact after it was conceded at trial, contrary to the suppression hearing testimony, that petitioner was taken into custody at 11:00 P.M. Because this concession established that petitioner truthfully testified in this regard, and because Detective Carpenter testified at trial that petitioner refused a request to speak to him at 11:00 P.M., petitioner argues that the trial judge should have considered whether petitioner's testimony that, at about 12:30 or 1:00 A.M., he was asked whether he "wanted to make a statement," T. 38, should also have been credited.
The need for a time-out to sort through all these conflicts in light of such pivotal new facts as were first admitted by police witnesses at trial -- again that petitioner was in custody, was not given Miranda warnings, was subjected to police questioning, and had at least once invoked his right to remain silent -- was glaring.
Petitioner's Memorandum at 16.
The flaw in this argument is that the trial judge was never asked to reconsider his findings of fact at all, much less on the occasion of the motion to reopen the suppression hearing. Indeed, my reading of the mid-trial motion to reopen leaves me with the same impression as it did the trial judge; petitioner argued only that because he indicated that he did not wish to speak at 11:00 P.M., when he was taken into custody, the resumption of questioning at 3:00 A.M. was improper. Tr. 288.
Under these circumstances, it is unclear what can reasonably be done at this point, more than 13 years after the suppression hearing and almost 14 years after the petitioner confessed. The trial judge was indisputably in the best possible position to reconsider his findings of fact on a record that was then fully developed. The presumption of correctness that attaches to his factual findings has not been overcome, and a hearing fourteen years after petitioner confessed would yield nothing in the way of a meaningful record on which to make new credibility findings.
Moreover, petitioner's own testimony provides no support for the claim that the circumstances of his interrogation rendered his confession involuntary. On the contrary, petitioner admitted that he had been arrested on prior occasions and that he was fully aware of his Miranda rights, HD 40, although he claimed that he was not apprised of them. While petitioner claimed to have been interrogated, he did not say that he confessed or that he felt compelled to speak because of fatigue or psychological pressure. Instead, petitioner's testimony suggests only that he did not say anything self-incriminatory and had no intention of doing so; it does not suggest an unwillingness to answer questions. This is a subtle, although critical, distinction both in terms of the voluntariness of the waiver of petitioner's right not to speak and the voluntariness of his self-incriminating statement.
Petitioner's testimony regarding his questioning at 1:30 A.M. is illustrative. Petitioner testified that after he was advised that Donna Bell confessed, he denied that he was either present during the murder or that he, Donna, and his brother had broken into the victim's apartment. HD 44. In response to a question about Donna Bell's motive, he said only that he "had known she wanted her [mother] out of her life but a murder wasn't her style. A burglary maybe to harass her, but a murder, no." HD 39.
Subsequently, after seeing Donna Bell making a videotaped confession, petitioner testified that he told Detective Donaldson that he had "nothing else to say," and that Donaldson replied "if you're not going to make a statement then we're through talking to you and they threw me in the bullpen." HD 39. Petitioner then went to sleep. HD 40.
Assuming petitioner's testimony regarding his response to Donna Bell's confession is not credited, and the police testimony is credited, the latter does support the conclusion that the sight of his accomplice girlfriend confessing moved petitioner to confess. Nevertheless, this is not sufficient to render his confession involuntary. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2, at 447 (1984) ("Clearly, there is nothing improper with confronting the suspect with actual evidence against him[.]); Derrick v. Peterson, 924 F.2d 813, 819 (9th Cir.), cert. denied 502 U.S. 853, 116 L. Ed. 2d 126, 112 S. Ct. 161 (1991); Williams v. State of Ohio, 547 F.2d 40, 41 (6th Cir. 1976), cert. denied 435 U.S. 998, 56 L. Ed. 2d 88, 98 S. Ct. 1654 (1978); see also Frazier v. Cupp, 394 U.S. 731 739, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969) (confession not involuntary where police falsely advised defendant that he had been implicated by his accomplice); Green v. Scully, 850 F.2d 894 (2d Cir.), cert. denied, 488 U.S. 945, 102 L. Ed. 2d 363, 109 S. Ct. 374 (1988) (same).
B. References to Donna Bell's Confession
In her opening statement, the Assistant District Attorney described for the jury the circumstances that led to petitioner's confession:
You will hear that Donna [Bell] made a statement to the detective. And the detective said to Stephen Gagne, Donna made a statement, he said no I can't believe it. I can't believe it. She wouldn't do that, was his answer.
Tr. 38. After an objection by petitioner's counsel, the trial judge ruled that he would not permit testimony as to the content of Donna's statements, but "anything that the policemen said to [petitioner] and anything he said to the policemen may be admissible." Tr. 40. This evidence, which related to the circumstances under which petitioner confessed, was relevant to the voluntariness of petitioner's confession which he chose to place before the jury.
Notwithstanding the trial judge's ruling, on the direct examination of Detective Bottari, the prosecutor asked, "Did Detective Donaldson inform you that Donna Bell had incriminated Steven Gagne?" Tr. 180. After an objection was sustained, the prosecutor asked, "Did you find out information concerning Steven Gagne?" Id. The judge sustained another objection, then sent the jury out and further admonished the prosecutor: "if you pull that kind of tactic again you may be running the risk of a mistrial." Tr. 181. Subsequently, the prosecutor did occasionally refer to the fact that petitioner confessed only after Donna spoke with the police, but never again explicitly alluded to the content of her statement. Nor did she refer to the content of Donna's statement during her summation. Tr. # 2 112.
Moreover, the trial judge instructed the jurors that they were "not to speculate as to the substance" of Donna Bell's statement, and that "you must strike from your mind any reference that might have been made to the substance of that statement during the trial." Tr. # 2, 160. The strong cautionary instruction concluded with these words:
The contents of the statement is not part of the evidence in this case for legal reasons, and you are not to consider it in arriving at your verdict.
On appeal, the Appellate Division held that, assuming the references to Donna Bell's statement were improper, "any errors were harmless in view of the overwhelming evidence of guilt." People v. Gagne, 514 N.Y.S.2d at 801. Whether the prejudicial effect of the references to Donna Bell's statement substantially outweighed its probative value is a close question. While it is true that only the content of Donna's confession is itself hearsay, the Confrontation Clause also prohibits a prosecutor from "creating in jurors' minds the impression that a codefendant's unreported statement" implicated the defendant in the crime. Mason v. Scully, 16 F.3d 38, 43 (2d Cir. 1994). The record here left such an inference. However, some reference to the circumstances that led petitioner to confess was necessary because it was relevant to the issue of the voluntariness of his confession.
Indeed, it was only with respect to this issue that the prosecutor referred to Donna Bell's confession in her summation. Tr. # 2 111-113. The concluding paragraphs are illustrative. After observing that petitioner told Detective Bottari that he did not believe that Donna Bell had "made a statement," id. at 111, the prosecutor observed:
Detective Bottari once again talks to Lieutenant Kelly, and at that point he takes this man, Stephen Gagne, over to where Donna Bell was making statement.