Eugene Anderson v. Harold J. Smith, Superintendent of Attica Correctional Facility, 751 F.2d 96, 2d Cir. (1984)
Eugene Anderson v. Harold J. Smith, Superintendent of Attica Correctional Facility, 751 F.2d 96, 2d Cir. (1984)
2d 96
This appeal is from a grant of a petition for habeas corpus under 28 U.S.C. Sec.
2254 (1982) on the basis of the failure of police officers to cease interrogation
under the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46
L.Ed.2d 313 (1975); and the other decisions of the Supreme Court and this
court involving the Miranda rules. In a bench trial in the New York Supreme
Court, Erie County, the petitioner-appellee, Eugene Anderson, was convicted of
felony murder (N.Y.Penal Law Sec. 125.25(3) (McKinney 1975)), attempted
robbery in the first degree (id. Secs. 110.00, 160.15(2)), and possession of a
weapon and dangerous instrument (id. Sec. 265.02(4) (McKinney 1980) (prior
to 1974 amendment codified as Sec. 265.05(2)). After exhaustion of his state
remedies, Anderson petitioned for habeas corpus in the United States District
Court for the Western District of New York, John T. Elfvin, Judge. The district
court concluded that petitioner's videotaped inculpatory statement had been
elicited in violation of his rights under Miranda and Mosley and granted the
application unless petitioner were afforded within sixty days a new trial in
which the confession would not be admitted in evidence. That order was stayed
by this court pending resolution of this appeal. We affirm.
FACTS
2
In the early morning hours of November 19, 1971, Martin Grant, a taxicab
driver, was shot near the corner of Jefferson Avenue and Northampton Street in
Buffalo, New York. Grant had sustained three flesh wounds in his leg inflicted
by a .22-caliber rifle and a fatal head wound from a .16-gauge shotgun.
Buffalo police arrived at the scene at about 2:20 a.m. and began an immediate
investigation of the shooting. Homicide detectives received tips indicating that
James Ward and Tyrone Powell had been responsible for Martin Grant's death.
There was evidence in the trial that, since the death of Martin Grant, James
Ward's street name had been changed from "Main Man" to "Sudden Death" and
that both the .22-caliber rifle that wounded Grant and the .16-gauge shotgun
that killed him belonged to James Ward.
As a result, Anderson was arrested at Bracey's home about 11:30 p.m. on the
evening of November 23, 1971, as were James Ward and Tyrone Powell. All
were advised of their Miranda rights by one Sergeant Hunter, and all indicated
that they understood those rights. At that time Anderson denied any knowledge
of the crime. Anderson, James Ward, and Powell were taken to the homicide
department, arriving at approximately 12:10 a.m. Anderson was taken directly
to Lieutenant Donovan's inner office. During the next few hours, James Ward
and Gladys Bracey each went into the inner office individually to speak
privately with Anderson, Bracey having been informed by the police that she
could help clear James Ward if Anderson confessed. Bracey later testified, "I
told him that if he didn't tell them that he had did it, that I would." Soon
thereafter, Lieutenant Donovan went back into his own office with Sergeant
Hunter and talked to Anderson, asking him whether he had "anything that you
want to tell me now?" According to Sergeant Hunter's testimony, Anderson
"slumped in his chair and he put his hand up ..., and he said, 'I done it'. At that
time the officers indicated to Anderson that they wanted to put the interrogation
on videotape, and at about 3:15 a.m. on November 24, 1971, the videotape
interrogation began. Since the conduct of that interrogation is the essence of
this case, it will be set out at some length.
6
First, Lieutenant Donovan read the Miranda rights to Anderson and asked if he
understood them. He said that he did. The next three questions were:
A. To who?
10
A. No.
11
Q. What?
12
A. No.
Lieutenant Donovan continued:
13
14
Q. Well, I told you I was going to give you an opportunity to talk for yourself,
isn't that correct? Now, you have indicated to me that you got something that
you want to say?
15
16
Q. I would like to have you repeat it. Sergeant Hunter from the Homicide
Bureau is here, and I am here, and I would like to have you repeat this and tell
me what you want to tell me?
17
A. Okay. I told you that I had something to do with the killing of the cab driver.
18
Q. Yes.
19
20
Q. Yes.
21
22
Q. Well, don't you want to clarify that by saying what happened or what
brought this on?
23
A. No.
24
25
26
27
Q. Well, you didn't tell us why you did it, so that's the only way I can put it,
when did you decide to do what finally came down?
28
29
30
A. No.
31
Q. Eugene, what the Lieutenant is doing, he is not trying to get you to say
anything that incriminates you. He is giving you the opportunity to deny--
32
33
Ultimately the officers drew the admission that Anderson had an attempted
35
A. Right.
36
37
A. Um-hum, yes.
38
39
A. No.
40
Q. Well, that's what I was getting at. I didn't want to imply that you were a mad
man, that you just went ape and shot this guy; that there was a reason for it.
41
42
At trial James Ward and Bracey testified against Anderson and his codefendant
Timothy Ward, but the State produced no eyewitness testimony implicating the
two defendants. The admission on the videotape that "There is a--supposed to
be a robbery" was clearly the most damaging and direct evidence of that fact,
the only support for it being James Ward's testimony that Anderson told him
that it looked like the cab driver had "a roll" and that they did not get it,
meaning the "roll." On cross-examination, however, James Ward testified that
Anderson never said anything to him about a robbery. There was no
circumstantial evidence introduced as to whether or not Grant's body was found
with or without money, whether his pockets were pulled out or disturbed, or
whether he was found to have a wallet, nor was there other evidence probative
of the attempted robbery.
43
Petitioner and his codefendant, as above stated, were found guilty by the court
of felony murder, attempted robbery in the first degree, and possession of a
weapon and dangerous instrument, but they were found not guilty of the
intentional murder charge brought pursuant to N.Y.Penal Law Sec. 125.25(1).
Anderson was sentenced to indeterminate terms of imprisonment of not less
than fifteen years and a maximum of life on the felony murder conviction, not
more than ten years on the attempted robbery conviction, and not more than
45
Our jurisdiction over the two convictions for which Anderson has already
served his time depends on whether Anderson's challenges to those convictions
are moot and whether he satisfies the custody requirement of 28 U.S.C. Secs.
2241(c), 2254(a). Clearly, Anderson's challenges are not moot, since a felony
conviction carries certain "collateral consequences." See Carafas v. LaVallee,
391 U.S. 234, 237, 88 S.Ct. 1556, 1589, 20 L.Ed.2d 554 (1968). For example, a
convicted felon cannot obtain a license for some businesses, see, e.g.,
N.Y.Gen.Bus.Law Sec. 74(2) (McKinney 1968), or serve jury duty, see
N.Y.Jud.Law Sec. 510(4) (McKinney Supp.1983).3 Just as clearly, because
Anderson was in custody for the attempted robbery at the time he filed his
habeas petition, he satisfied the custody requirement. Carafas, 391 U.S. at 23840, 88 S.Ct. at 1559-60. Hence we have jurisdiction to consider the
constitutionality of that conviction.
46
47
We now turn to the merits of Anderson's claims that his videotaped confession
was obtained in violation of Miranda. The typical Miranda case involves one of
three issues: whether there is the need for Miranda warnings, whether the
warnings given were adequate, or whether the suspect effectively waived his
rights immediately after receiving the warnings. This case, however, involves
so-called "second level" Miranda safeguards--the procedures Miranda and
progeny dictate should be followed after a suspect asserts his rights, to insure
that the police do not pressure the suspect to change his mind. See Kamisar,
The Edwards and Bradshaw Cases: The Court Giveth and The Court Taketh
Away, in 5 The Supreme Court: Trends and Developments 1982-1983, at 153
(1984) (citing People v. Grant, 45 N.Y.2d 366, 371-72, 380 N.E.2d 257, 260,
408 N.Y.S.2d 429, 432 (1978)). Police interrogation is more severely restricted
after the suspect asserts his right to counsel than after he asserts his right to
silence. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 188485, 68 L.Ed.2d 378 (1981); Michigan v. Mosley, 423 U.S. at 104 & n. 10, 96
S.Ct. at 326 & n. 10. But see Kamisar, supra, at 157 (arguing that the level of
procedural protection should not depend on which right the suspect invokes,
since the same police actions are just as coercive after the suspect invokes one
right as after he invokes the other and the suspect typically does not know that
the extent of his protection hinges on his choice of rights). Thus, the first
49
Once warnings have been given, the subsequent procedure is clear. If the
individual indicates in any manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must cease. At this point he
has shown that he intends to exercise his Fifth Amendment privilege; any
statement taken after the person invokes his privilege cannot be other than the
product of compulsion, subtle or otherwise. Without the right to cut off
questioning, the setting of in-custody interrogation operates on the individual to
overcome free choice in producing a statement after the privilege has been once
invoked.
50
pressed on with the follow-up question, "Well, don't you want to clarify that by
saying what happened or what brought this on?," again eliciting the answer
"No."
As stated in Michigan v. Mosley:
51
A reasonable and faithful interpretation of the Miranda opinion must rest on the
intention of the Court in that case to adopt "fully effective means ... to notify
the person of his right of silence and to assure that the exercise of the right will
be scrupulously honored ...." 384 U.S., at 479, 86 S.Ct., at 1630.
52
423 U.S. at 103, 96 S.Ct. at 326. We do not see here how it can be said that
Anderson's right of silence was "scrupulously honored." With Anderson at
several points seeking to terminate the questioning, the interrogator plowed
ahead.6 The crucial admission that the purpose of the shooting was "[t]here is
a--supposed to be a robbery" was not elicited until at least one other attempt on
the part of the suspect to terminate questioning.
53
The State only halfheartedly suggests that Anderson's decision to talk was
voluntary because he obviously knew how to invoke his right to remain silent,
having done so at the time of his arrest, and "presumably" knew that his right
would be respected. This suggestion is patently untenable. Even if Anderson
did believe for a time that the police would respect his rights, he could hardly
have maintained that belief in the face of Lieutenant Donovan's refusal to
accept his silence during the videotape session.7 Scrupulously honoring a
suspect's rights for a few hours does not lessen the impact of subsequent
coercive questioning. The police must honor the suspect's rights at all times.
54
The State more cogently argues that "the questioning engaged in by Lieutenant
Donovan following petitioner's initial response of 'No' was geared not to guilt or
innocence but the procedural question of why petitioner declined to go forward
at that moment." In essence, the State contends that Lieutenant Donovan's
questioning was not "interrogation" as defined in Rhode Island v. Innis, 446
U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (footnotes
omitted):
55 term "interrogation" under Miranda refers not only to express questioning, but
[T]he
also to any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.
56
We are referred to the Ninth Circuit's United States v. Lopez-Diaz, 630 F.2d
56
We are referred to the Ninth Circuit's United States v. Lopez-Diaz, 630 F.2d
661, 665 (9th Cir.1980), which looks toward a distinction between "an inquiry
for the limited purpose of clarifying whether the defendant is invoking his right
to remain silent or has changed his mind regarding an earlier assertion of the
right" and "questioning aimed at eliciting incriminating statements concerning
the very subject on which the defendant has invoked his right." Innis apparently
prohibits only the second kind of questioning.
57
The first kind of questioning under the Lopez-Diaz distinction refers to two
limited situations in which some courts have held that the interrogator can pose
certain questions to the accused immediately after the accused has asserted his
right to remain silent. First, when it is unclear whether the suspect has indeed
invoked his right to silence, the interrogator can ask questions designed to
clarify whether or not the suspect intends to talk. See, e.g., Nash v. Estelle, 597
F.2d 513, 517 (5th Cir.) (en banc) (suspect's intent unclear when he expressed
contradictory desires, "a desire for counsel and a desire to continue the
interview without counsel"), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62
L.Ed.2d 409 (1979); United States v. Riggs, 537 F.2d 1219, 1222 (4th
Cir.1976) (suspect's statement that he had "no information" could be interpreted
"as a mere declaration of ignorance not precluding further cooperation with the
investigation").8 Miranda itself approved such clarifying questions. See 384
U.S. at 485, 86 S.Ct. at 1633 (quoting with approval statements by the Director
of the FBI describing the FBI's interrogation procedures). Here, however,
Anderson very clearly invoked his right to silence. When Lieutenant Donovan
asked him whether he wanted to talk, he said "no," twice. Indeed, in asking
why Anderson refused to talk, the lieutenant implicitly acknowledged that
Anderson's decision was clear.
58
The State urges that Wilson v. Henderson, 584 F.2d 1185 (2d Cir.1978),
rehearing en banc denied, 590 F.2d 408, cert. denied, 442 U.S. 945, 99 S.Ct.
2892, 61 L.Ed.2d 316 (1979), is precedent for allowing clarifying questions
even after the suspect clearly refuses to talk. In Wilson, however, the panel
majority found the suspect's refusal to make a "statement" not clear but
ambiguous; the police had reason to wonder whether Wilson meant only that he
would not give a "confession," especially since Wilson might have been
expected to offer an exculpatory explanation, having turned himself in. Hence
the interrogator's question, "Would you care to tell me what you did on July
4th?," could "fairly be construed as an explanation to Wilson that a 'statement'
need not be a confession and as an attempt to ascertain the scope of Wilson's
refusal to make a 'statement.' " Id. at 1188. In the instant case, Anderson flatly
refused to talk at all. No latent ambiguity resides in that refusal. We believe it
would be unwarranted to extend the holding of the Wilson panel to this case.9
See United States v. Hernandez, 574 F.2d 1362, 1369 (5th Cir.1978) (failure to
60
should cease. After all, the Fifth Amendment assumes that the suspect invokes
his right in order not to be a witness against himself; that is reason enough. An
interrogator would only want to probe beyond the suspect's presumed desire to
avoid self-incrimination if he expected either to evoke an incriminating
response or to get a clue as to how the suspect might be persuaded to abandon
his rights. Indeed, Lieutenant Donovan's question "You don't want to talk to
me? Why?" apparently fulfilled both those expectations. We assume that
Anderson replied, "I done told you alrady."10 Itself an incriminating
confirmation of Anderson's earlier admission of guilt, this reply showed the
lieutenant exactly how to wear down Anderson's resolve not to talk; Anderson
already believed that his earlier admission had done him in, and needed only to
be convinced of a reason to repeat it. The lieutenant capitalized on this new
knowledge immediately, stating, "I would like to have you repeat it. Sergeant
Hunter from the Homicide Bureau is here, and I am here, and I would like to
have you repeat this and tell me what you want to tell me?" Out-argued,
Anderson gave in.
61
In short, the police should have realized that asking Anderson why he refused
to talk was "reasonably likely to elicit an incriminating response," Rhode Island
v. Innis, 446 U.S. at 301, 100 S.Ct. at 1689. Far from being "merely a
procedural followup," as the State suggests, this question violated Anderson's
right to remain silent.
62
The State's fallback argument is that even if it was erroneous to admit the
videotape statement, to do so was at most harmless error. The State argues first
that other trial testimony amply supported conviction: James Ward and Gladys
Bracey both testified that Anderson had admitted his participation to them, and
defense counsel elicited on cross-examination of Sergeant Hunter the statement
that prior to the videotape, when asked "Well, how do you feel now? Do you
have anything that you want to tell me now?," Anderson said, "I done it," and in
reply to the question "You said what?," he said, "I done it." Second, the State
contends that the district court failed to accord the state court's determinations
of Ward's and Bracey's credibility the "high measure of deference," Sumner v.
Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982),
required by 28 U.S.C. Sec. 2254(d) ("a determination after a hearing on the
merits of a factual issue, made by a State court of competent jurisdiction ...
shall be presumed to be correct").
63
Smith, 698 F.2d 581 (2d Cir.1983). The question is not whether there is legally
"sufficient evidence [of guilt] on which the accused could have been convicted
without the evidence complained of." Fahy v. Connecticut, 375 U.S. 85, 86, 84
S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Indeed, even if a court considers the
evidence overwhelming, it should not automatically assume that a
constitutional error is harmless. See Harrington v. California, 395 U.S. 250,
254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); Chapman, 386 U.S. at 23, 87
S.Ct. at 827. The test rather is simply whether "there is a reasonable possibility
that the improperly admitted evidence contributed to the conviction." Schneble
v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972);
accord Chapman, 386 U.S. at 24, 87 S.Ct. at 828.
64
65
66
The federal district court's finding that James Ward's and Gladys Bracey's
testimony was of questionable validity also need not delay us here. Ward's
testimony certainly involved some self-interest, particularly since there was
evidence that the guns involved were his and that he was walking his dogs
nearby at the time of the shooting. Not without bearing is the fact that Ward's
street name evidently changed from "Main Man" to "Sudden Death" after the
shooting, and that he was originally a primary suspect in the murder. Although
Bracey was never implicated in the crime, her relationship with Ward and her
desire to protect him similarly detract from the credibility of her testimony.
Neither these comments nor the district court's in any way disregard the rule of
the Supreme Court cases and the statute regarding the sanctity of state court
findings. We repeat that we are here seeking to determine whether the
constitutional error was harmless, not to determine whether there was sufficient
evidence to support the verdict. Where, as here, the judge makes no specific
credibility findings, we must speculate how much weight he accorded different
evidence to determine the harm done by the erroneously admitted evidence.
67
The fact that this was a bench trial is irrelevant. True, a judge conducting a
bench trial can hear evidence that he ultimately determines to be inadmissible
without prejudice to his verdict. Here, however, the statement was accepted into
evidence, and it was considered to be relevant and probative, so that the judge
had no reason to ignore or discount it as evidence. We are required to conclude
that the admission of the videotape was not harmless constitutional error.
68
We affirm the district court's judgment granting release from custody unless
Anderson receives within sixty days a new trial for felony murder, the offense
for which Anderson is now incarcerated. However, we remand to the district
court to determine the appropriate relief from the unconstitutional convictions
for attempted robbery and weapons possession.
69
Q. Now, let me ask you this. I think it is only fair that you have an opportunity
to answer this. Did you intend that this cab driver die as a result of this
shooting?
A. Did the cab driver die as a result of my shooting?
Q. Right
A. Or his?
Q. Did you have any idea that this guy was going to die?
A. No, I didn't.
Q. Did you have any intention (unintelligible).
A. No.
Q. Of killing him?
A. No, I didn't.
Q. I mean, do you think that's a fair question to give you an opportunity to say
that you didn't intend to do this?
A. Well, I didn't.
3
When the judge, rather than the parole board, has set the minimum sentence,
the parole board is directed to consider the factors in N.Y.Exec.Law Sec. 259-
i(1)(a). Id. Sec. 259-i(2)(c). Here the judge set the 15-year minimum sentence
for felony murder pursuant to N.Y.Penal Law Sec. 70.00(3)(a)(i) (McKinney
1975)
6
Our decision in United States v. Collins, 462 F.2d 792 (2d Cir.), cert. denied,
409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972), does not detract from this
result. Although the police subjected Collins to several rounds of questioning,
they ended every interrogation session as soon as Collins invoked his rights, not
to resume until hours later after a new reading of the Miranda warnings. Here
indisputedly the police did not cease their interrogation nor administer fresh
warnings prior to their follow-up questions. Moreover, the court en banc placed
the gloss on Collins that "what Miranda requires is that 'interrogation must
cease' until new and adequate warnings have been given and there is a
reasonable basis for inferring that the suspect has voluntarily changed his
mind." Id. at 802. Collins anticipates Mosley. To the extent that Collins is
otherwise inconsistent with Mosley, it would no longer control
Indeed, Anderson must have abandoned this belief even earlier. Although it is
unclear whether the police subjected Anderson to interrogation during his first
few hours in custody, James Ward and Gladys Bracey pressured him to confess
during that time, and Lieutenant Donovan followed up afterward with the
question, "Do you have anything that you want to tell me now?" (emphasis
added) without rereading Anderson his Miranda rights as Michigan v. Mosley
requires. In view of this coercion, the presiding justice at the suppression
hearing decided that all statements made by Anderson before the videotape
session were obtained in violation of Miranda
Other differences between Wilson and this case also compel this conclusion.
Wilson's exculpatory story was "related in narrative fashion and not in response
to a series of questions by the officer." 584 F.2d at 1188. Moreover, when the
suspect concluded his narrative with the words "And that's all," id. at 1187-strikingly like Anderson in this case--Wilson was promptly removed from the
interrogation room and the interrogation ceased. Id. at 1188. These factors are
simply not present in the instant case. The entire interrogation was not in
narrative form but in question and answer form. And when Anderson said,
"And that's all," the interrogation continued with the direct object to adduce the
admission that Anderson intended to rob the cabdriver
Wilson also illustrates the difficulty inherent in applying the exception for
clarifying questions in borderline cases. Often judges disagree about whether
the suspect's invocation of his rights was ambiguous or whether a given
question can properly be classified as "clarifying." Several borderline cases,
including Wilson itself, see 584 F.2d at 1192 (Oakes, J., dissenting); 590 F.2d
at 408 (Oakes, J., dissenting from denial of rehearing en banc), have provoked
strong dissents. See also Nash v. Estelle, 597 F.2d at 520 (Godbold, J.,
dissenting); United States v. Rodriguez-Gastelum, 569 F.2d 482, 488 (9th
Cir.1978) (en banc) (Goodwin, J., concurring and dissenting). The potential to
erode Miranda and Mosley by allowing unceasing interrogation under the guise
of clarification cautions against permitting clarifying questions too freely.
10
11
This statement would have been suppressed on direct examination. See supra
note 7