Alexander v. Smith

Citation582 F.2d 212
Decision Date07 August 1978
Docket NumberD,No. 732,732
PartiesSamuel ALEXANDER, Petitioner-Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent-Appellee. ocket 78-2007.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Benjamin I. Cohen, New York City (Poletti, Freidin, Prashker, Feldman & Gartner, Stanley Futterman, New York City, of counsel), for petitioner-appellant.

Tyrone Mark Powell, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

Before WATERMAN, INGRAHAM * and MANSFIELD, Circuit Judges.

WATERMAN, Circuit Judge:

This is an appeal from a judgment order of the United States District Court for the Western District of New York, Curtin, J., denying without an evidentiary hearing a petition seeking the issuance of a writ of habeas corpus. Assigned counsel has done an admirable job briefing and arguing this appeal but, inasmuch as we find no error in Judge Curtin's decision or reasoning, we affirm.

On August 24, 1971 a Brooklyn, New York supermarket was robbed and the assistant manager, Thomas Higgins, was shot to death during the course of the robbery. At about 6:30 a. m. on September 8, 1971, the police arrested one Robert Smith for the murder of Higgins and upon his arrest Smith immediately confessed and implicated Alexander, the petitioner-appellant here, in the robbery and murder. Acting upon the information so received and other information as well, the police, with Smith present to identify the apartment where Alexander resided, went directly to Alexander's apartment and arrested him there at approximately 7:30 a. m. As he was being taken into custody, Alexander, who in view of a number of previous arrests was probably well-acquainted with what should be done in such a situation, instructed his wife to call his attorney. The police officer told Alexander's wife that Alexander would be taken to the 73rd Precinct. 1 Upon arrival Following ten hours during which he might have received only a minimal amount of food or drink while being held in the detention cell but during which time he had not been subjected to any further interrogation, 3 Alexander was again questioned on September 8, this time at 9 p. m. that evening by Assistant District Attorney DiBenedetto. The state prosecutor again read Alexander all of his Miranda rights. Alexander was then asked if he understood each right and in each instance he replied "Yes." Alexander then asked, "You said that if I wanted an attorney present, that's my right to have an attorney present (?)" DiBenedetto responded, rather obliquely, that Alexander himself could decide whether he wished to provide any answers to any of the prosecutor's questions. An off-the- Alexander was finally booked at 11 p. m. that same evening and he was arraigned on a felony murder charge the following day. Indictment followed on September 11, 1971. On September 15, 1971, counsel was appointed to represent him.

at the 73rd Precinct stationhouse, contrary to standard practice, Alexander was not immediately booked but was instead taken to a detention cell. At about 10:30 a. m. one of the arresting officers, a Detective Schneider, took Alexander to a bathroom. Upon returning to the detention pen, while walking through the police locker room, Alexander indicated that he wished to discuss his situation with the officer. Detective Schneider then read Alexander his Miranda rights, among which were included his rights to be represented by an attorney, to have counsel present during any interrogation, and to have an attorney appointed for him if he could not afford one. As Alexander was being advised of each distinct right, Detective Schneider asked Alexander whether Alexander understood each of these rights. Each time he was so asked, Alexander nodded his head in the affirmative. After being advised of his rights, Alexander was asked whether he still wished to make a statement without counsel being present. After again indicating that his response was in the affirmative, Alexander asked "What am I here for?" In response the detective stated that Alexander was being held "for the Bohack killing." Alexander thereupon exclaimed: "My gun wasn't popping. Gene's was." He thereby implicated himself in the robbery and murder at the supermarket in Brooklyn. When Detective Schneider notified a second officer, Detective Cambridge, as to what had occurred, the latter entered the locker room and again informed Alexander of his Miranda rights. Again choosing to waive those rights, Alexander once more implicated himself in the crime by telling Detective Cambridge: "All right, you have got me and you have got the little guy. I know the little guy gave me up." After further probing the officer's knowledge concerning the circumstances surrounding the commission of the crime, Alexander further stated, in substance, according to Detective Cambridge, that "(t)wo of Gene's regular partners had to go south for a funeral, and Gene said to me and the little guy we didn't have to do anything, one of us would stand by the door and the other would take the registers." 2 record discussion followed and immediately thereafter, Alexander said: "Pop your questions." This the assistant district attorney forthwith proceeded to do. In response to DiBenedetto's questions, Alexander gave an extremely comprehensive statement which fully implicated him in the robbery and murder at the Bohack's supermarket in Brooklyn. 4

In accordance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), a pretrial hearing (hereinafter the "Huntley hearing") on Alexander's motion to suppress the two incriminating statements he had made to the detectives and the detailed confession he had made to the assistant district attorney was held from February 15, 1972 through February 22, 1972 before Justice Joseph Mollen of the New York State Supreme Court, Kings County. At the close of this protracted hearing, Alexander sought to reopen the record so that he could introduce the testimony of two additional witnesses, that of his wife and that of his father-in-law, German, both of whom had been previously unavailable because they had been attending the out-of-state funeral of a member of the family. In refusing to permit Mrs. Alexander to corroborate her husband's testimony that he had been beaten at the time of his arrest, Justice Mollen stated that the wife's testimony would have been merely cumulative to that given by Alexander and would not have been relevant to the issue of voluntariness inasmuch as there was no indication that petitioner had confessed as a result of the alleged blows inflicted by the police at the time of Alexander's apprehension at his apartment at about 7:30 a. m. on the morning of September 8, 1971. See note 1 Supra. As to the proffered testimony of Alexander's father-in-law that, upon appearing at the 73rd Precinct house during the day of September 8, 1971, he had been informed that Alexander was not at the stationhouse, when, in fact, Alexander was being held in a detention cell upstairs, Justice Mollen ruled that such testimony would be hearsay and "would not (, in any event,) have any real bearing on the issues before the Court" in the Huntley hearing.

The state trial court judge then read into the record his detailed findings of fact and conclusions of law. Justice Mollen found that Alexander had been adequately advised of his Miranda rights and had knowingly and intelligently waived them. The judge also found that all of Alexander's statements were fully voluntary and that "no force, no duress, no coercion, no violence" had been used by the police or the prosecutor to compel Alexander to make any statements to the detectives or to the assistant district attorney.

Alexander's trial in the New York State Supreme Court, Kings County, on a charge of felony murder commenced on February 28, 1972. On the second day of trial Justice Mollen reversed his earlier determination, made at the Huntley hearing, and ruled that the first statement Alexander had made to the police in the locker room on the morning of the 8th of September would be excluded inasmuch as Alexander's "nodding" after each question posed to him by Detective Schneider might not have been an adequate enough indication of an intention to waive his Miranda rights. 5 The On February 11, 1975 Alexander filed with the United States District Court for the Western District of New York a Pro se petition seeking the issuance of a writ of habeas corpus. In February 1976 counsel was appointed to represent Alexander and an amended habeas corpus petition was filed with the district court on March 24, 1976. After an independent review of the transcript of the Huntley hearing, the trial transcript, the briefs and other records of trial and appeal, United States District Judge John T. Curtin, in a decision dated November 4, 1977, concurred in the state trial court's findings. Judge Curtin recognized that the findings of the state court are presumptively correct and, inasmuch as his own review of the record of the Huntley hearing had not disclosed any reason for ignoring the state trial court judge's determinations, the federal district judge accorded them the standard deference to which they are statutorily entitled; indeed, Judge Curtin indicated that Justice Mollen's findings were amply supported by the record made during the Huntley hearing. Judge Curtin thus concurred in the state trial judge's conclusion that under the "totality of the circumstances" test, Alexander's statements were neither coerced nor obtained by means of physical violence. Accordingly Following Judge Curtin's issuance of a certificate of probable cause, Alexander filed a notice of appeal from the district court...

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