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December 5, 1996

STEPHEN GAGNE, 84-A-4007, Petitioner, against THOMAS COUGHLIN, SUPT., Respondent.

The opinion of the court was delivered by: KORMAN


 Petitioner Stephen Gagne seeks habeas corpus relief from his 1984 New York State conviction for intentional and felony murder and first degree burglary. After a jury trial, petitioner was sentenced to two concurrent terms of twenty-five years to life and one concurrent term of twelve and one-half to twenty-five years. The Appellate Division affirmed the conviction on April 27, 1987, People v. Gagne, 129 A.D.2d 808, 514 N.Y.S.2d 799 (App. Div. 2d Dep't 1987), and Judge Bellacosa denied his application for leave to appeal on July 21, 1987. 70 N.Y.2d 703, 513 N.E.2d 715, 519 N.Y.S.2d 1038 (1987). Although petitioner's motion for reconsideration of his leave application was granted, he was again denied leave. People v. Gagne, 71 N.Y.2d 1027, 530 N.Y.S.2d 562, 526 N.E.2d 54 (1988).

 The underlying crimes were committed on the morning of April 6, 1983, when petitioner, his girlfriend, and his brother broke into the girlfriend's mother's apartment. During the course of the robbery, the mother, Palmina Bell, was strangled. Two days later, both petitioner and his girlfriend, Donna Bell, confessed to the crime. Petitioner's primary ground for relief is that his confession should not have been admitted into evidence. His second contention is that the prosecutor's references during the trial to Donna Bell's confession violated the Confrontation Clause.


 Petitioner was afforded a lengthy suppression hearing, conducted jointly with both codefendants and occupying several full days spread over three months. The evidence at the hearing, which included petitioner's own testimony, did not support petitioner's claim that his confession was coerced. That evidence, detailed below, essentially established that, after petitioner and Donna Bell agreed to go to the police station for questioning, petitioner voluntarily remained there until Donna confessed. Following Donna's confession, petitioner received Miranda warnings, voluntarily confessed, and was arrested.

 At the trial, however, police testimony, also summarized below, revealed that petitioner had been arrested several hours prior to confessing. Moreover, just after the arrest, petitioner was questioned without the benefit of Miranda warnings. Although petitioner did not make any incriminating statements at that time, he argues that the improper initial questioning tainted the subsequent interrogation.

 People's Suppression Hearing Evidence

 According to the police officers who testified at the suppression hearing, petitioner telephoned the Queens Task Force at approximately 5 P.M. on April 7, 1983, and asked whether the police were looking for him. He was told by Sergeant Plansker that the police did wish to speak to both him and Donna Bell. At this time, petitioner and Donna were not suspects. When petitioner told police that they would be coming in from Bayshore, Sergeant Plansker told him that police detectives would pick them up and drive them to the station.

 At Sergeant Plansker's request, Detective McCarthy and Sergeant Mobilio drove to Bayshore to pick up petitioner and Donna. McCarthy testified at the suppression hearing that they were not suspects at that time, that he did not arrest them, did not read them their rights, and did not attempt to question them about the murder. HD 6. *fn1" While en route to the station, petitioner asked if they could go back and get his car so that he could drive himself to the station. The police informed petitioner that they were already approaching the station and that the police would drive petitioner back to his car later. HD 11. At approximately 7 P.M., petitioner and Donna Bell arrived at the stationhouse and were taken upstairs to a squad room, where they were told to sit on a bench on the second floor. Petitioner remained unattended on or around the bench while officers interviewed Donna in another room. When Donna Bell's brother arrived at the station at approximately 9 P.M., he observed petitioner, unescorted, making a phone call from a pay phone. HC 105.

 At approximately 9 P.M., Detective Donaldson took Donna Bell into his office. He advised her of her Miranda rights as per "standard operating procedure," but did not consider her a suspect at that time. The initial interrogation was not fruitful, but Donaldson again questioned Donna at approximately 10 P.M. after informing her that a witness placed her at her mother's house at the time of the murder. This time, Donna admitted that on April 5th she, petitioner, and Louis Gagne had driven to her mother's house at approximately 5 A.M. intending to burglarize the apartment while her mother slept. According to Donna, she sat in the car while petitioner and his brother entered the apartment. Forty minutes later, petitioner and his brother came running out of the apartment and petitioner told her that he had strangled her mother when she awoke during the robbery. Donaldson took notes of the interview and had Donna sign them. Donaldson testified at the suppression hearing that after Donna had given her statement, petitioner would not have been free to leave the stationhouse, even though he was not yet arrested. HB 35.

 The key factual issue concerns what happened to petitioner at approximately 11 P.M., just after Donna Bell confessed. At the suppression hearing, Sergeant Carpenter, who was called as a witness by Donna Bell, testified under cross examination by petitioner's counsel that, after leaving the room where Donna was answering questions, he attempted to question petitioner. HC 138. The cross examination at the suppression hearing was very brief, no more than a few questions, and left this aspect of the testimony undeveloped. Significantly, Carpenter never indicated where petitioner was at the time of this brief exchange, nor did he recount what, if anything, petitioner said in response.

 Exactly what petitioner was doing for the next few hours was not clarified at the suppression hearing. The next person to have direct contact with petitioner was Detective Bottari, who testified that, at approximately 3:30 A.M., he escorted petitioner from the bench in the squad room into an office for an interrogation. Although Detective Carpenter was one of two additional detectives present during Bottari's interrogation, Bottari testified at trial that he was unaware that any other officer had previously attempted to question petitioner. After Bottari advised petitioner of his Miranda rights and petitioner indicated that he understood them, Bottari informed petitioner that Donna had told police that petitioner killed her mother. HB 87. As Bottari began to ask questions about the night of the murder, petitioner began to cry and stated that he could not believe Donna had made her statement. HB 88. Bottari then brought petitioner to the room where Donna was giving a videotaped statement to Assistant District Attorney Mark Furman. HB 88. Petitioner was permitted to peek inside the room and then was brought back to his interview room. Bottari also told petitioner that his brother, Louis, was in custody, but this was not true.

 After seeing Donna confessing, petitioner confessed to the crime. He told Bottari that he had gone to Palmina Bell's apartment with Donna and Louis because Donna had wanted her mother killed. Petitioner said, contrary to Donna's statement, that Donna had been present in the apartment. He informed Bottari that Donna and Louis had nothing to do with the murder but then said that he could not say that he had because, if he did, "how can I plead not guilty in court?" HB 76. At approximately 4 A.M., ADA Furman was informed that petitioner had made a statement but that he did not wish to make his statement on videotape.

 Later, while being driven to Central Booking, petitioner told Detective Kelly that Donna had always wanted to have her mother killed and that petitioner had told her that killing her was not necessary and that he wished he had never met Donna. HB 77. During the suppression hearing, the prosecutor agreed that this statement would not be introduced in the direct case. Tr. 7.

 Petitioner's Testimony at the Suppression Hearing

 Petitioner's testimony, which the presiding judge did not credit, differed in several important respects from the version offered by the officers who testified. Specifically, petitioner testified that when McCarthy arrived to pick him up and transport him and Donna to the station, McCarthy told petitioner that he was being placed under arrest. Petitioner testified that he asked to be permitted to call his attorney and was permitted to do so but reached only an answering machine and opted not to leave a message. HD 26. McCarthy then handcuffed petitioner, but not Donna, before placing them in the squad car. HD 27. Petitioner testified that before they left he asked to be permitted to drive his own vehicle but the request was refused. HD 27. Petitioner also testified that he was not read his Miranda rights at that time, but was questioned by McCarthy. HD 28.

 Petitioner testified that, once at the stationhouse, he was handcuffed to a bench but after ten minutes the handcuffs were removed. HD 29. He asked to telephone his attorney but was denied permission to do so until 7:30 P.M. when McCarthy took him downstairs to use the phone. Petitioner tried to call his attorney but reached an answering machine and again did not leave a message. HD 32-33. Instead, he called his aunt and asked her to continue trying to reach the attorney. HD 47.

 According to petitioner, after making his phone calls he was brought into an interrogation room by Donaldson and several other detectives who took turns asking him questions from 8 P.M. to 10 P.M.. HD 34; HE 30-31. Petitioner claimed that he was not informed of his Miranda rights prior to this interrogation. After this session, petitioner was returned to the bench, where he sat for approximately an hour before Donaldson informed him that he was under arrest for murder. During the next several hours petitioner was questioned and asked whether he wanted to make a statement. Petitioner protested his innocence and indicated that he did not believe that Donna was making a statement. At approximately 2:30 A.M., petitioner was told that if he did not believe Donna was making a statement he could observe her doing so. After the officers allowed petitioner to glimpse Donna making her statement, he was placed in a jail cell and later transported to central booking.

 Petitioner admitted on cross examination that prior to this arrest he had been arrested several times and had been advised of his rights during those arrests. HD 40.

 The Motion to Suppress is Denied

 In a written opinion, Justice Posner denied Donna Bell's and petitioner's suppression motions. Resp. Ex. B. With respect to petitioner, Justice Posner found that petitioner had "voluntarily remained in the stationhouse while Donna Bell was being questioned by the police." Justice Posner found that the statement made to Bottari at 3:30 A.M., after petitioner was advised of his rights and after petitioner saw Donna making her statement, was voluntarily made. "The Court does not credit the testimony of the defendant, Stephen Gagne, that he was questioned by the police earlier that night without benefit of Miranda warnings, nor does the Court credit his testimony that he had requested and attempted to contact an attorney."

 Petitioner was tried separately from his codefendants. At trial, Sergeant Carpenter testified that after he interviewed Donna Bell, he conferred with Detective Crowe and Lieutenant Kelly and they decided that petitioner should be arrested. Following instructions from Kelly, Crowe arrested petitioner and placed him in a detention cell at approximately 11 P.M.. Tr. 263. Carpenter then tried to question petitioner without first advising him of his rights. Carpenter testified, "I asked him if he wanted to talk to me," Tr. 286, and petitioner responded, "I just don't want to talk to you." Tr. 269-71. Carpenter then ceased questioning petitioner and left the area.

 Renewed Suppression Motion

 At the conclusion of Carpenter's trial testimony, defense counsel moved to reopen the suppression hearing. Tr. 287. The details of the colloquy surrounding the application are significant because they pertain to respondent's argument that petitioner's claim is procedurally barred.

 When defense counsel, Mr. Schwed, moved to reopen the hearing, he explained:

Your honor in his decision did not strike [sic] any of the testimony of Steven Gagne, specifically in your Honor's decision that he was questioned by police earlier that night prior to Detective Bottari questioning. During the entire hearing no officer admitted or was willing to dispute that the defendant was arrested prior to 3:30 in the morning. Or that he was in custody. Clearly from Detective Carpenter's testimony he was arrested at 11:00 o'clock in the morning [sic]. That he was placed in the pen.

 Tr. 287. In response to the application, Justice Posner stated:

So whatever [petitioner] told Carpenter at that time is stricken and since the people have offered no statement concerning anything that he told Carpenter you have made a moot point. In other words, it's a valid Huntley issue that you have raised but there is nothing to suppress because nothing was said.

 Tr. 288. Defense counsel then pressed his point, arguing that "the question is whether or not to have a defendant in custody for a period of 4 to 4 and [a] half hours and an attempt made to question him without benefit of his rights" might render the subsequent confession inadmissible. Tr. 288.

 Justice Posner refused to reopen the suppression hearing but did offer counsel an opportunity to submit a memorandum of law on the issue. He also permitted counsel to argue the voluntariness of the confession to the jury and agreed to include in his jury charge the defendant's factual "contention" that petitioner ...

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