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DALLIO v. SPITZER
October 26, 2001
THOMAS DALLIO, PETITIONER,
ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL, AND MICHAEL MCGINNIS, SUPERINTENDENT, SOUTHPORT CORRECTIONAL FACILITY, RESPONDENTS.
The opinion of the court was delivered by: Block, District Judge.
Petitioner, Thomas Dallio ("Dallio") seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On October 15, 1991, Dallio
confessed to robbing and murdering Loni Berglund ("Berglund") in
her home in Queens on January 10, 1986. Dallio's motion to
suppress the confession was denied by the Supreme Court, Queens
County, on August 3, 1995, after a hearing. Thereafter, on
November 13, 1995, Dallio pled guilty to two counts of murder in
the second degree, N.Y. Penal Law § 125.25, , one count of
robbery in the first degree, N.Y. Penal Law § 160.15, and one
count of criminal possession of a weapon in the second degree,
N.Y. Penal Law § 265.03. Dallio is concurrently serving two
sentences of twenty-two years to life on the murder counts, and
two sentences of five-to-fifteen years on the other counts.
Dallio contends that he is entitled to habeas relief because:
(1) he was deprived of his Sixth Amendment right to counsel at
the suppression hearing when, toward the end of the hearing, he
elected to represent himself but the court failed to warn him of
the dangers and disadvantages of doing so; (2) his right to
remain silent and "cut off questioning was [not] scrupulously
honored," Pet. Mem. and App. at 46; and (3) his confession was
not voluntarily obtained. For the reasons set forth below, the
petition is denied.
The following facts are taken from the suppression hearing: In
May 1991, during a continuing investigation into the Berglund
murder, fingerprints recovered from the crime scene were analyzed
on the newly-installed Statewide Automatic Fingerprint
Identification System (SAFIS). Dallio's prints came up as a
match. On October 15, 1991, Dallio was visited at the Shawangunk
Correctional Facility ("Shawangunk") by the investigators
assigned to the Berglund case, Sergeant Timothy Copeland
("Copeland") and Detective Raymond Pierce ("Pierce"). At the
time, Dallio was serving a six-to-twelve year sentence for a 1988
According to Copeland, Dallio was escorted to a room for
questioning at approximately 11:25 a.m., a guard was posted
outside the room, and at approximately 11:30 a.m., Dallio was
given Miranda warnings. Dallio stated that he understood his
rights and signed a waiver of his right to counsel and to remain
silent. After approximately forty minutes of inquiry, Copeland
asked Dallio if he would agree to tape recording their
conversation. Dallio stated "I don't know if I should talk on the
tape without representation." Tr. at 15 (June 9, 1993).*fn1
Copeland then asked Dallio "what do you mean by representation?
Do you mean someone from jail?" Id. When Dallio did not
respond, Copeland asked "do you want a lawyer or what?" Id.
Dallio responded "no, I don't know what I want." Id. Pierce
also asked Dallio "do you want a lawyer?" Id. Dallio replied
"no, no, I'll talk to you," but not on tape. Id. The officers
then put the tape recorder away and the inquiry continued.
After a short time, Copeland again asked Dallio if he would go
on tape. This time he agreed. During the course of the
questioning the officers focused on whether Dallio had ever been
to Queens County, where the murder took place. Dallio stated that
his only connection to Queens County was his godmother because
that was where she resided. The officers then began asking
questions about Dallio's godmother. When the officers mentioned
her name, however, Dallio became visibly upset and put a hand up,
as if motioning for the tape to be stopped. After the taping
ceased, Dallio stated that he did not want the officers to "bring
[his] godmother into this." Id. at 20. While the tape was off,
Dallio was also shown some photographs of Berglund and her
residence. Dallio calmed down after a few minutes and Copeland
restarted the tape. The questioning then focused on Dallio's
previous burglaries. Dallio once again became visibly upset, made
a hand gesture, and asked that the tape be turned off. Off the
tape, the officers continued to talk with Dallio about his prior
criminal activities, as well as his childhood. After engaging in
such conversation for about an hour or so, and after Dallio
returned from a forty-five minute escorted trip to the bathroom,
Copeland told Dallio that his fingerprints had been found at the
crime scene. Dallio did not believe him. Thereafter, Pierce asked
Dallio "what if I was to tell you that they were [found] in
blood."*fn2 Tr. at 18 (Sept. 16, 1993).
Copeland then told Dallio that Berglund's mother was a
forgiving and religious woman. Dallio finally agreed to talk and
said "I'll tell you, but I'm not telling you for you, I'm telling
you for Mrs. Berglund, for her sake." Tr. at 33 (June 10, 1993).
Shortly thereafter, at approximately 4:30 p.m., Dallio agreed to
resume taping their conversation. Dallio then confessed on tape
to the Berglund murder. Copeland then left the room and returned
with a video recorder. Upon his return, Copeland read Dallio his
Miranda rights again. Dallio waived his rights and gave a video
About six months later, on April 8, 1992, Dallio was arrested
for the Berglund murder. On the way to the police precinct from
Riker's Island, Dallio asked the officers "listen, you already
know through my confession that I killed Loni Berglund. Do you
think I should get the death penalty?" Id. at 44. Copeland
stated that he thought he would, and Dallio stated "I killed her
in a drug-crazed state. I didn't mean to do it. I think I should
get manslaughter not murder." Id. Dallio also said "if it
wasn't for that confession and the prints you say you have on me,
you wouldn't have anything. What I told you and Detective Pierce
was for Mrs. Berglund's sake, nobody else's." Id. at 45.
The suppression hearing covered seven days throughout the
course of almost two years.*fn3 Copeland and Pierce testified at
the hearing. On April 19, 1995, after the government had rested,
Dallio's counsel, John O'Grady ("O'Grady"), informed the court
that Dallio wished to proceed pro se. O'Grady stated:
Pet. Mem. and App. at A5. The government objected on the ground
that the request to proceed pro se was a delaying tactic.
Dallio then addressed the court under oath: Dallio explained that
O'Grady was his second lawyer. His first lawyer, Joseph V.
DiBlasi ("DiBlasi"), represented him at the portion of the
hearing conducted from June 9, 1993 through September 16, 1993.
Sometime thereafter, Dallio made a motion for new counsel because
he believed that DiBlasi was not representing him adequately.
Specifically, Dallio questioned DiBlasi's impeachment of
Copeland, claiming that DiBlasi did not lay a foundation to test
his credibility by introducing dozens of inconsistent statements.
In December 1994 the motion was granted and O'Grady was assigned.
In requesting to proceed pro se, Dallio also criticized
O'Grady, explaining that O'Grady did not pick up the case file
until March 1995. Dallio also claimed that O'Grady had never seen
the crime scene photographs, which Dallio thought were "relevant
to a particular issue during the interrogation." Id. at A9.
Furthermore, Dallio was dissatisfied with O'Grady's intention to
raise only one issue in the memorandum of law in support of
suppression. Without any further colloquy, the court simply asked
Dallio: "are you ready to proceed now?" Tr. at 68 (Apr. 19,
1995). Dallio responded "yes," and the court stated "you may
proceed." Id. ...