that morning, Detective Swenson, who was unaware that a written
statement had already been taken, had petitioner write out
another statement. This second statement was signed by both
petitioner and Detective Swenson. Approximately 7:45 p.m. that
evening, petitioner gave a third statement to Assistant District
Attorney Donna Henken, which was videotaped. Before this
statement, he was reissued Miranda warnings, which he again
waived. Petitioner also made incriminating statements during the
day while he was handcuffed to a railing of a stairwell with his
Justice Torres found that all of petitioner's statements made
at the police station were admissible at trial. Justice Torres
held petitioner's initial statements made during the first hour
and a half were admissible since petitioner was not in a
custodial setting. Petitioner's oral, written, and videotaped
statements made thereafter were also held to be admissible since
petitioner was advised of his Miranda rights, which he
knowingly and voluntarily waived. Justice Torres also found that
petitioner's statements made while handcuffed to the railing were
admissible because they were not a product of interrogation.
On December 10, 1991, following a seven-week jury trial,
petitioner was convicted of one count of Felony Murder in the
Second Degree, under New York Penal Law Section 125.24(3), for
the killing of Brian Watkins, and two counts each of Robbery in
the First and Second Degrees, under New York Penal Law Sections
160.15(3), 160.10(1) and 160(2)(a), for the robbery of the
Watkins family. Thereafter, petitioner was sentenced to
concurrent terms of twenty-five years to life imprisonment for
murder, eight and one-third to twenty-five years for first-degree
robbery, and five to fifteen years for second-degree robbery.
On January 3, 1992, after the jury verdict but prior to
sentencing, petitioner brought a motion pursuant to New York
Criminal Procedure Law Section 440.10 to set aside the verdict on
the grounds that the trial court issued legal instructions to the
jury in the absence of petitioner's counsel. Justice Torres
summarily denied the motion on May 18, 1992, but granted leave to
appeal and consolidated the matter with petitioner's direct
appeal to the Appellate Division, First Department. By Decision
and Order dated November 30, 1993, the Appellate Division
affirmed the trial court's judgment of conviction. See People v.
Nova, 198 A.D.2d 193, 603 N.Y.S.2d 863 (1st Dept. 1993). On
February 17, 1994, the Court of Appeals denied leave to appeal.
Petitioner then filed a timely application for a writ of habeas
corpus on December 5, 1995.
A. Right to Miranda Warnings
In Miranda, the Supreme Court set forth a bright-line rule
that a person must be advised that he has "the right to remain
silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an
attorney, either retained or appointed," before being subjected
to a custodial interrogation. Miranda, 384 U.S. at 444, 86
S.Ct. 1602. The Court held that such warnings were necessary in
order to safeguard an individual's right under the Fifth
Amendment to the Constitution not to be compelled to incriminate
himself. See id. at 439, 86 S.Ct. 1602.
A person is considered in custody when his "freedom of action
is curtailed to a `degree associated with formal arrest.'"
Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82
L.Ed.2d 317 (1984) (quoting California v. Beheler,
463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)).
The Second Circuit has elaborated on the custody test by holding
that "[a]n accused is in custody when, even in the absence of an
actual arrest, law enforcement officials act or speak in a manner
that conveys the message that
they would not permit the accused to leave." Tankleff v.
Senkowski, 135 F.3d 235, 244 (2d Cir. 1998) (finding suspect in
custody after two hours of increasingly hostile questioning at
the police station where police repeatedly questioned suspect's
credibility and confronted him with false evidence of his guilt).
"[T]he initial determination of custody depends on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or
the person being questioned." Stansbury v. California,
511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (finding
defendant not entitled to Miranda warnings when questioned at
the police station by officers who subjectively believed
defendant to be the prime suspect); see also Berkemer, 468 U.S.
at 442, 104 S.Ct. 3138 ("A policeman's unarticulated plan has no
bearing on the question whether a suspect was `in custody' at a
particular time."); Beckwith v. United States, 425 U.S. 341, 96
S.Ct. 1612, 48 L.Ed.2d 1 (1976) (finding suspect in a criminal
tax fraud investigation not in custody when interviewed by IRS
agents at his private home despite the fact that he was the focus
of the investigation at the time he was questioned).
A habeas court is free to make the custody determination
independently since it involves a mixed question of law and fact.
See Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133
L.Ed.2d 383 (1995) (holding state court determinations of the
custody prerequisite for Miranda purposes are not entitled to
any presumption of correctness). In making such a determination,
the habeas court must examine all the circumstances surrounding
the interrogation, including:
whether a suspect is or is not told that she is free
to leave, see Campaneria v. Reid, 891 F.2d 1014,
1021 n. 1 (2d Cir. 1989); the location and atmosphere
of the interrogation, see Oregon v. Mathiason,
429 U.S. 492, 494-95, 97 S.Ct. 711, 50 L.Ed.2d 714
(1977); the language and tone used by the police,
see United States v. Guarno, 819 F.2d 28, 31-32 (2d
Cir. 1987); whether the suspect is searched, frisked,
or patted down, see United States v. Wilson,
901 F. Supp. 172, 175 (S.D.N.Y. 1995); and the length of
the interrogation, see Berkemer, 468 U.S. at
437-38, 104 S.Ct. 3138.
Tankleff, 135 F.3d at 244. However, "the ultimate inquiry for
custody determinations is whether a reasonable person in the
suspect's position would have felt that he was free to terminate
the interrogation and leave." Beheler, 463 U.S. at 1125, 103