United States v. Denno

• Decision Date: 06 November 1963
• Docket Number: Docket 28157.,No. 21,21
• Parties: UNITED STATES of America ex rel. Harry Carson McNERLIN, Relator-Appellant, v. Wilfred L. DENNO, Warden of Sing Sing Prison, Ossining, New York, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

324 F.2d 46 (1963)

UNITED STATES of America ex rel. Harry Carson McNERLIN, Relator-Appellant, v. Wilfred L. DENNO, Warden of Sing Sing Prison, Ossining, New York, Respondent.

No. 21, Docket 28157.

United States Court of Appeals Second Circuit.

Argued October 3, 1963.

Decided November 6, 1963.

David M. Dorsen, New York City, for petitioner-appellant.

Ronald J. Offenkrantz, Deputy Asst. Atty. Gen. of State of New York (Louis J. Lefkowitz, Atty. Gen., and Irving Galt, Asst. Solicitor Gen., on the brief), for respondent.

Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

Relator was convicted on trial to the jury in the New York State Courts of murder in the first degree for shooting a close friend in resentment at the friend's advice to stop annoying some girls with requests to dance in a tavern. Sentence of execution was later commuted to life imprisonment. The conviction was affirmed on appeal, People of State of New York v. McNerlin, 11 N.Y.2d 738, 226 N.Y.S.2d 443, 181 N.E.2d 456 (1962), the Court of Appeals later amending its mandate to certify that it considered and rejected a claim that a coerced confession had been introduced at the trial. Certiorari was denied McNerlin v. United States, 371 U.S. 850, 83 S.Ct. 88, 9 L.Ed. 2d 85 (1962). Application for writ of habeas corpus to the United States District Court for the Southern District of New York was denied by Judge Weinfeld February 27, 1963 without a hearing. We find no error in the denial of the writ, and affirm the judgment.

Briefly the circumstances of the shooting were as follows: Relator McNerlin and his friend John Setari had spent some time on a Sunday afternoon and evening with another man and three girls drinking beer and liquor in a park and in bars. There was a juke box in one of the bars. Whether it was in operation during the evening and whether anyone was dancing is not clear, but in any event McNerlin asked some of a second group of three girls with whom he was acquainted to dance or go out with him. They refused. Setari told McNerlin to "lay off" and leave the girls alone. McNerlin walked some ten or eleven blocks to his home, changed clothes, got out a .357 single action revolver, loaded it, put it in his belt, put some thirty additional cartridges in his pocket and returned to the bar. There he talked to Setari, and asked the girls again if they wanted to dance. When they again refused, Setari once more advised McNerlin to leave the girls alone. McNerlin then fired one shot down his leg, the bullet ricocheting and slightly injuring one of the girls. He then fired four more shots, each time manually recocking the single action revolver. One of the shots struck Setari in the chest and fatally injured him. At the time, Setari was directly in front of McNerlin, some two or three feet away, and had just thrown one of the girls over a booth to get her out of the way of the shots. McNerlin ran from the bar to the home of a friend on another street, where he was found by police lying near the steps to the house, crying hysterically. He had dropped or thrown the gun a few feet away.

He was taken to a police station, where, after calming down, he gave a detailed account of his actions during the day, including the shooting. An assistant district attorney was called, and a stenographer, who took down a statement in question and answer form, which was transcribed and signed by McNerlin.

Relator was 21, had been drinking, had no criminal court experience, was without counsel and, so far as appears, without warning as to his rights. He showed no reluctance to talk when questioned promptly after the shooting of his friend, which occurred at about 11:15 p. m. There was no undue delay in calling in the Assistant District Attorney, who arrived shortly after midnight, or the stenographer; the statement under attack was taken down between 3:30 and 4:30 a. m., and was transcribed and signed by 5:30 or 6:00 a. m.

The issue in this case is whether the District Court was required to hold a factual hearing on a petition for writ of habeas corpus based on a claim that a confession admitted in evidence in a state court murder trial over objection on the ground the confession was coerced made the conviction void as lacking in due process. The issue of voluntariness was submitted to the jury in the criminal trial. The judge refused to exclude the confession, and instructed the jury that it was not to consider the confession unless it was voluntary and not the result of the claimed threats. In the instant habeas corpus proceeding in the District Court, no evidence was taken on the issue. Judge Weinfeld denied a hearing not only because he found no "vital flaw" in the state proceedings, but also because he found no reason for exercising his discretion to grant a hearing.

It is contended that under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), decided subsequent to Judge Weinfeld's ...