751 F.2d 96 (2nd Cir. 1984), 344, Anderson v. Smith

Docket Nº:344, Docket 84-2197.
Citation:751 F.2d 96
Party Name:Eugene ANDERSON, Appellee, v. Harold J. SMITH, Superintendent of Attica Correctional Facility, Appellant.
Case Date:December 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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751 F.2d 96 (2nd Cir. 1984)

Eugene ANDERSON, Appellee,


Harold J. SMITH, Superintendent of Attica Correctional

Facility, Appellant.

No. 344, Docket 84-2197.

United States Court of Appeals, Second Circuit

December 18, 1984

Argued Oct. 17, 1984.

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Louis A. Haremski, Buffalo, N.Y. (Richard J. Arcara, Dist. Atty., of Erie County, John J. DeFranks, Asst. Dist. Atty., Buffalo, N.Y., of counsel), for appellant.

R. Nils Olsen, Jr., Buffalo, N.Y., for appellee.

Before OAKES and WINTER, Circuit Judges, and CLARIE, District Judge. [*]

OAKES, Circuit Judge:

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.


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.

James Ward was picked up on the morning of November 23, 1971, on suspicion of the killing. He and his girlfriend, Gladys Bracey, gave oral statements that same

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evening implicating his sixteen-year-old brother, Timothy Ward, and petitioner Anderson, age eighteen, and arranged with the police to cooperate in obtaining petitioner's arrest.

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.

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:

Q. Now, having these rights in mind, do you wish to talk to us now?

A. To who?

Q. Do you want to talk to me now,

A. No.

Q. What?

A. No.

Lieutenant Donovan continued:

Q. You don't want to talk to me? Why?

A. I done told you already. 1

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?

A. Did I say (unintelligible).

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?

A. Okay. I told you that I had something to do with the killing of the cab driver.

Q. Yes.

A. And that I did shoot the man with the rifle.

Q. Yes.

A. And that's all.

Q. Well, don't you want to clarify that by saying what happened or what brought this on?

A. No.

The interrogation continued, eliciting answers to questions about the kind of rifle that Anderson had fired (a .22 automatic sawed-off); whether Anderson knew the cab driver (answered in the negative); whether the driver had ever been seen before (answered "Yes, every day," later changed to "about every other day"); and eliciting that the statement was voluntary and true and that Anderson had graduated from high school. Anderson was asked whether he intended that the cab driver die,

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and he answered in the negative. 2 A further significant passage of the interrogation is as follows:

Q. When did you decide to off the cab driver?

A. It wasn't decided to off the cab driver.

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?

A. It wasn't decided. It just--just happened, that's all.

Q. Would you give me a reason why it happened?

A. No.

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--

A. How am I incriminating myself?

Ultimately the officers drew the admission that Anderson had an attempted felony in mind as follows:

Q. But you didn't do it yourself simply because you wanted to shoot somebody?

A. Right.

Q. You had a purpose in mind?

A. Um-hum, yes.

Q. Well, can I ask you this, was it money?

A. No.

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.

A. There is a--supposed to be a robbery.

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.

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 five years on the weapons conviction, all sentences to be served concurrently. The Appellate Division of the New York Supreme Court, Fourth Department, affirmed the conviction on May 18, 1973, by summary order. Discretionary leave to appeal to the New York Court of Appeals was denied by order of the Hon. Matthew J. Jason, Associate Judge, on October 25, 1973. The instant

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petition for a writ was filed on February 9, 1982, following Judge Elfvin's issuance of an order granting a petition for a writ of habeas corpus to codefendant Timothy Ward also on the basis of a videotaped statement procured by the police in contravention of the Fifth Amendment right to terminate interrogation. See Ward v. Smith, Civ. No. 79-261E (W.D.N.Y. June 12, 1981). Judge Elfvin granted Anderson the writ on May 24, 1984.


As a preliminary matter, we note that Anderson remains imprisoned only for the offense of felony murder, having completed his sentence for attempted robbery in August, 1982, six months after he filed for habeas corpus, and his sentence for weapons possession in August, 1977, four and a half years before he filed his petition. In granting Anderson's petition, the district court does not seem to have considered the two offenses for which Anderson has already completed his jail sentences. However, Anderson's...

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