Jacquin v. Stenzil, 1350

• Decision Date: 28 September 1989
• Docket Number: D,No. 1350,1350
• Citation: 886 F.2d 506
• Parties: Richard K. JACQUIN, Petitioner-Appellant, v. Walter STENZIL, Warden, Nassau County Correctional Center, Respondent-Appellee. ocket 89-2064.
• Court: U.S. Court of Appeals — Second Circuit

Page 506

886 F.2d 506

Richard K. JACQUIN, Petitioner-Appellant, v. Walter STENZIL, Warden, Nassau County Correctional Center Respondent-Appellee.

No. 1350, Docket 89-2064.

United States Court of Appeals Second Circuit.

Argued July 17, 1989.

Decided Sept. 28, 1989.

Steven G. Legum, Mineola, N.Y. (Carlucci & Legum, Mineola, N.Y., of counsel), for petitioner-appellant.

Peter R. Shapiro, Nassau County Asst. Dist. Atty., Mineola, N.Y. (Denis Dillon, Nassau County Dist. Atty., Bruce E. Whitney, Nassau County Asst. Dist. Atty., Mineola, N.Y., of counsel), for respondent-appellee.

Before WINTER and MAHONEY, Circuit Judges, and RE, ^* Judge.

WINTER, Circuit Judge:

Richard K. Jacquin appeals from the denial of his petition for a writ of habeas corpus. Jacquin was convicted by a New York state court for driving while intoxicated. His conviction was based in part on a videotape of a performance test. At a pre-trial suppression hearing, his counsel objected to the admission of the entire audio portion of the videotape containing questions and answers on the ground that the answers were obtained in violation of Jacquin's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The tape with the audio portion was admitted, and Jacquin was convicted. The New York Court of Appeals affirmed, holding sua sponte that Jacquin had failed to preserve the Miranda issue for appellate review under New York state law. Judge Mishler dismissed Jacquin's petition for a writ of habeas corpus but granted him a certificate of probable cause for this appeal. We affirm on the ground that a procedural default under state law precludes review.

In the early morning hours of May 6, 1983, a Nassau County police officer observed Jacquin driving his car erratically in Garden City, New York. After pulling Jacquin over, the odor of alcohol and Jacquin's difficulty in standing gave the officer ample reason to doubt his sobriety. Jacquin's statement, "You got a winner here.... I can't pass no test," did little to allay the officer's suspicion.

The officer took Jacquin to the police headquarters' Central Testing Unit, where Jacquin twice refused to take a breathalyzer test. Without reading a Miranda warning to Jacquin, an officer activated a videotape machine to record everything that Jacquin did and said while being given a "performance test." The performance test involved Jacquin's picking up coins from the floor and putting them on a table, walking a line heel to toe, standing straight with head back, and touching the tip of his nose with his fingertips. These acts were accompanied by various oral interchanges between Jacquin and an officer. Jacquin was required to answer a number of questions, including routine pedigree information. Also among the questions were the following: "How long have you had your driver's license? ... [K]nowing that your license will be suspended do you still refuse to take the [breathalyzer] test? ... Do you have any injuries? ... Are you diabetic?"

At a suppression hearing on March 22, 1985, defense counsel objected to the admission of all the questions, answers and other interchanges recorded on the videotape on the ground that admission would violate Jacquin's Miranda rights. The hearing judge asked defense counsel to particularize the statements subject to Miranda rulings, and counsel stated that "[a]ny conversation there beyond refusal" was the object of his Miranda claim. The judge thereafter admitted the videotaped questions and answers in their entirety.

At trial, the videotape was played to the jury without objection by defense counsel. Defense counsel also made no Fifth Amendment-based objection to the admission of a police form with many of the same questions and answers on it. The jury convicted Jacquin of the felony of driving while intoxicated, and he was sentenced to sixty days' imprisonment, five years' probation, a $500 fine, and revocation of his driver's license for one year. Jacquin appealed his conviction to the Appellate Division. On appeal, the state made no claim that Jacquin had failed to preserve his Miranda objection, and the Appellate Division reached the Miranda issue and affirmed on the merits.

Jacquin was then accorded leave to appeal to the New York Court of Appeals. Again, the state did not argue that he failed to preserve the Miranda issue. The Court of Appeals affirmed, holding sua sponte, however, that Jacquin's motion to suppress the entire audio portion of the videotape was insufficient to preserve the Miranda issue for appeal. It was necessary, the court stated, for Jacquin's lawyer "to identify the specific questions and answers he found objectionable" in order to preserve the issue for review. People v. Jacquin, 71 N.Y.2d 825, 826, 522 N.E.2d 1026, 1027, 527 N.Y.S.2d 728, 729 (1988).

Jacquin thereupon petitioned in the Eastern District for a writ of habeas corpus arguing that his impending imprisonment ¹ violated his federal constitutional rights. Judge Mishler dismissed the petition, holding that Jacquin's claims were barred under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Wainwright, the Supreme Court held that a state court's "adequate and independent" finding of procedural default will bar federal habeas review, unless the petitioner can show "cause and prejudice."

Jacquin's principal argument is that the issue of...