United States ex rel. Hughes v. McMann

• Decision Date: 14 November 1968
• Docket Number: No. 70,Docket 31461.,70
• Parties: UNITED STATES of America ex rel. Joseph HUGHES, Petitioner-Appellant, v. Hon. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

405 F.2d 773 (1968)

UNITED STATES of America ex rel. Joseph HUGHES, Petitioner-Appellant, v. Hon. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.

No. 70, Docket 31461.

United States Court of Appeals Second Circuit.

Argued September 20, 1968.

Decided November 14, 1968.

Peter S. Paine, Jr., New York City (Anthony F. Marra, The Legal Aid Society, New York City), for petitioner-appellant.

Hillel Hoffman, Asst. Atty. Gen. (Samuel A. Hirshowitz, First Asst. Atty. Gen., on brief) (Louis J. Lefkowitz, Atty. Gen., of the State of New York), for respondent-appellee.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

Joseph Hughes, convicted of felony murder by a New York court in 1958, has sought federal habeas corpus because of the receipt in evidence at his trial of two written confessions alleged to have been involuntary.

The indictment was for causing the death of Spinaci, the proprietor of an Italian delicatessen store, who was wounded during a robbery in Buffalo, N. Y., and later died. No objection was made to the admission of the confessions at the trial. The jury convicted of felony murder with a recommendation of life imprisonment; the judge sentenced Hughes to death. On appeal to the New York Court of Appeals the question of the voluntariness of the confessions was raised for the first time; the court affirmed without opinion, People v. Hughes, 6 N.Y.2d 839, 188 N.Y.S.2d 222, 159 N.E.2d 704 (1959). Governor Rockefeller later commuted Hughes' sentence to life imprisonment.

After the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Hughes petitioned the state court for coram nobis and was granted a hearing before a Justice of the Supreme Court for Erie County pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).¹ The facts found by him or established by uncontroverted testimony are as follows:

Hughes was arrested on November 21, 1957, the day after the robbery, and was taken directly to Buffalo Police Headquarters. He is a Negro, then twenty-one years old, with only a fifth-grade education; he had been sent three times to reform school. His home was in Jamestown, N. Y.; he had been in Buffalo about a week and was unemployed. At the police station he was questioned intermittently by three to five police officers for a period of not more than an hour. Four officers then took him to a hospital where Spinaci was in serious condition, sustained by tubes and plasma bottles. Sparcino, an Italian-speaking ambulance driver, consulted with the wounded man but apparently was unable to obtain a positive identification; an episode occurred during the hospital visit about which we shall have more to say below. Hughes was then returned to police headquarters between midnight and 12:20 A.M. on November 22 and was questioned by the District Attorney of Erie County; the questions and answers were taken down by typewriter and signed. The questions, which were asked slowly so that the typist could record the conversation, give no evidence of pressure, and the answers are natural and circumstantial. Hughes was then placed in a cell; this was about 1:30 A.M. according to uncontroverted police testimony.

Arraignments in Buffalo were customarily held commencing at 2 P.M. Hughes was again questioned about 2:15 P.M. by a desk lieutenant. A short narrative statement was taken, which Hughes signed about 2:55 P.M. He was then arraigned on a charge of robbery.

Hughes testified that, in the course of his initial questioning before being taken to the hospital, and again after his return, he requested and was denied the use of a telephone to call his sister in Jamestown, to ask her to try to get a lawyer for him. Four police officers testified they did not recollect any such request; the testimony of two went further, indicating belief that no request had been made. One officer said the practice was to allow a person under interrogation to make one telephone call, but another was not sure that this applied to long-distance calls.² The state court found that "neither the police nor the District Attorney advised defendant that he was under no compulsion to make a statement or that he was entitled to the aid of counsel." Hughes also testified without contradiction that he was not advised that anything he said might be used against him. Although Hughes alleged many instances of abusive language and threatening gestures — but not physical violence — by police officers and an offer of leniency by the district attorney, all this was categorically denied, and the state judge found "there was no force or fear employed by the District Attorney or other officers involved in the taking of either statement."

The state judge concluded that "the People have sustained the burden of proof on the issue of voluntariness, and the proof establishes beyond a reasonable doubt that the defendant's will was not overborne and that the statements * * * were voluntarily and freely given." Accordingly he denied coram nobis. This ruling was affirmed without opinion, People v. Hughes, 25 A.D. 2d 720, 269 N.Y.S.2d 964 (4th Dept. 1966), and Judge Fuld denied leave to appeal to the Court of Appeals on May 17, 1966.

Noting that all these actions by the state courts ante-dated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), and Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), Judge Foley thought the New York courts should have an opportunity to reconsider the case in light of these Supreme Court decisions and dismissed the application for habeas corpus without prejudice. He granted a certificate of probable cause; we gave leave to appeal in forma pauperis and assigned counsel.

Hughes manifests no desire to resort again to the New York courts. This is understandable since he would have scant prospect of success. New York has not chosen "to effectuate * * stricter standards" than those laid down in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda, or "to apply those standards in a broader range of cases than is required by this decision." Johnson v. New Jersey, supra, 384 U.S. at 733, 86 S.Ct. at 1781; see People v. McQueen, 18 N.Y.2d 337, 342, 274 N.Y.S.2d 886, 889, 221 N.E.2d 550 (1966); People v. Horton, 18 N.Y.2d 355, 275 N.Y.S.2d 377, 221 N.E.2d 909 (1966). Davis v. North Carolina announced no novel doctrine; it merely applied the test of voluntariness that had gradually evolved since Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). We see no reason why Hughes should be put to a further journey through the New York courts that will almost certainly be futile; he is entitled to have his claim passed upon by a federal court without further ado.

If the case could be properly disposed of upon the points on which it was argued, we would nevertheless affirm the denial of the writ. Hughes makes none of the attacks on the factual determinations of the state court that are enumerated in 28 U.S.C. § 2254(d), which in the main codified Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See White v. Swenson, 261 F.Supp. 42 (W.D.Mo.1966) (in banc); Hamric v. Bailey, 274 F.Supp. 240 (S.D. W.Va.1967). His claim was rather that the facts as found called for a legal conclusion on the voluntariness of the confession opposite to that reached by the state judge — an issue on which we are as able to pass as the hard-pressed District Court for the Northern District of New York.

The legal issue, as the Supreme Court has frequently instructed, "is whether the defendant's will was overborne at the time he confessed." See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). "The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (opinion of Mr. Justice Frankfurter). The test "has become increasingly meticulous through the years," Johnson v. New Jersey, supra, 384 U.S. at 730, 86 S.Ct. at 1779, and old cases upholding confessions, even Supreme Court cases not expressly overruled, are hence of little assistance.

The bases urged upon us to show that Hughes' "will was overborne" are the lack of warnings and the alleged refusal to allow him to telephone his sister. While the Court has made clear that failure to advise the accused of his privilege against self-incrimination is a factor to be taken into account in passing on the voluntariness of a confession, this alone can hardly be sufficient. If it were, the promise of Johnson v. New Jersey that Escobedo and Miranda would not be applied so as to "seriously disrupt the administration of our criminal laws," 384 U.S. at 731, 86 S.Ct. at 1780, would be an empty one. Even when we add the alleged refusal to allow Hughes to call his sister, Hughes' case is some distance from the most recent decisions of the Court invalidating confessions as involuntary: Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) prisoner kept in dark detention cell for 16 days without seeing anyone and with notations on arrest sheet that no one was to be allowed to see him and that he was not to be allowed to use telephone; no advice of rights; extremely limited food; daily interrogation sessions; Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967) prisoner first confessed 38 hours after arrest when he "had had little sleep and very little food, and appeared to the police to be sick" and had consistently denied guilt; confessed again three days later after he had been "detained in at least three different police buildings," apparently had "had very little to eat and little...