Dallio v. Spitzer
| Decision Date | 26 October 2001 |
| Docket Number | No. 00 CV 1572.,00 CV 1572. |
| Parties | Thomas DALLIO, Petitioner, v. Eliot SPITZER, New York State Attorney General, and Michael McGinnis, Superintendent, Southport Correctional Facility, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
William B. Carney, The Legal Aid Society Criminal Appeals Bureau, New York, NY, for petitioner.
Richard A. Brown, District Attorney, Queens County by John M. Castellano Lisa Drury, Assistant District Attorneys, Kew Gardens, NY, for respondents.
Petitioner, Thomas Dallio ("Dallio") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 15, 1991, Dallio confessed to robbing and murdering Loni Berglund ("Berglund") in her home in Queens on January 10, 1986. Dallio's motion to suppress the confession was denied by the Supreme Court, Queens County, on August 3, 1995, after a hearing. Thereafter, on November 13, 1995, Dallio pled guilty to two counts of murder in the second degree, N.Y. Penal Law § 125.25[1], [3], one count of robbery in the first degree, N.Y. Penal Law § 160.15[2], and one count of criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03. Dallio is concurrently serving two sentences of twenty-two years to life on the murder counts, and two sentences of five-to-fifteen years on the other counts. Dallio contends that he is entitled to habeas relief because: (1) he was deprived of his Sixth Amendment right to counsel at the suppression hearing when, toward the end of the hearing, he elected to represent himself but the court failed to warn him of the dangers and disadvantages of doing so; (2) his right to remain silent and "cut off questioning was [not] scrupulously honored," Pet. Mem. and App. at 46; and (3) his confession was not voluntarily obtained. For the reasons set forth below, the petition is denied.
The following facts are taken from the suppression hearing: In May 1991, during a continuing investigation into the Berglund murder, fingerprints recovered from the crime scene were analyzed on the newly-installed Statewide Automatic Fingerprint Identification System (SAFIS). Dallio's prints came up as a match. On October 15, 1991, Dallio was visited at the Shawangunk Correctional Facility ("Shawangunk") by the investigators assigned to the Berglund case, Sergeant Timothy Copeland ("Copeland") and Detective Raymond Pierce ("Pierce"). At the time, Dallio was serving a six-to-twelve year sentence for a 1988 robbery conviction.
According to Copeland, Dallio was escorted to a room for questioning at approximately 11:25 a.m., a guard was posted outside the room, and at approximately 11:30 a.m., Dallio was given Miranda warnings. Dallio stated that he understood his rights and signed a waiver of his right to counsel and to remain silent. After approximately forty minutes of inquiry, Copeland asked Dallio if he would agree to tape recording their conversation. Dallio stated "I don't know if I should talk on the tape without representation." Tr. at 15 (June 9, 1993).1 Copeland then asked Dallio Id. When Dallio did not respond, Copeland asked "do you want a lawyer or what?" Id. Dallio responded "no, I don't know what I want." Id. Pierce also asked Dallio "do you want a lawyer?" Id. Dallio replied "no, no, I'll talk to you," but not on tape. Id. The officers then put the tape recorder away and the inquiry continued.
After a short time, Copeland again asked Dallio if he would go on tape. This time he agreed. During the course of the questioning the officers focused on whether Dallio had ever been to Queens County, where the murder took place. Dallio stated that his only connection to Queens County was his godmother because that was where she resided. The officers then began asking questions about Dallio's godmother. When the officers mentioned her name, however, Dallio became visibly upset and put a hand up, as if motioning for the tape to be stopped. After the taping ceased, Dallio stated that he did not want the officers to "bring [his] godmother into this." Id. at 20. While the tape was off, Dallio was also shown some photographs of Berglund and her residence. Dallio calmed down after a few minutes and Copeland restarted the tape. The questioning then focused on Dallio's previous burglaries. Dallio once again became visibly upset, made a hand gesture, and asked that the tape be turned off. Off the tape, the officers continued to talk with Dallio about his prior criminal activities, as well as his childhood. After engaging in such conversation for about an hour or so, and after Dallio returned from a forty-five minute escorted trip to the bathroom, Copeland told Dallio that his fingerprints had been found at the crime scene. Dallio did not believe him. Thereafter, Pierce asked Dallio "what if I was to tell you that they were [found] in blood."2 Tr. at 18 (Sept. 16, 1993).
Copeland then told Dallio that Berglund's mother was a forgiving and religious woman. Dallio finally agreed to talk and said "I'll tell you, but I'm not telling you for you, I'm telling you for Mrs. Berglund, for her sake." Tr. at 33 (June 10, 1993). Shortly thereafter, at approximately 4:30 p.m., Dallio agreed to resume taping their conversation. Dallio then confessed on tape to the Berglund murder. Copeland then left the room and returned with a video recorder. Upon his return, Copeland read Dallio his Miranda rights again. Dallio waived his rights and gave a video confession.
About six months later, on April 8, 1992, Dallio was arrested for the Berglund murder. On the way to the police precinct from Riker's Island, Dallio asked the officers Id. at 44. Copeland stated that he thought he would, and Dallio stated Id. Dallio also said Id. at 45.
The suppression hearing covered seven days throughout the course of almost two years.3 Copeland and Pierce testified at the hearing. On April 19, 1995, after the government had rested, Dallio's counsel, John O'Grady ("O'Grady"), informed the court that Dallio wished to proceed pro se. O'Grady stated:
We had an in-depth conversation. [Dallio] feels that he is very familiar with the manner in which to proceed on this hearing, and how he wants to handle Detective Copeland, and he has expressed reservations about how prior counsel handled this matter. In my opinion, your Honor, he is competent — well, I don't know if he is competent to proceed pro se, your Honor, as an attorney. He is certainly competent to make that decision, and as such, I think he wishes to address the Court and has a number of issues to address to the Court on this matter. If the Court would hear my client.
Pet. Mem. and App. at A5. The government objected on the ground that the request to proceed pro se was a delaying tactic. Dallio then addressed the court under oath: Dallio explained that O'Grady was his second lawyer. His first lawyer, Joseph V. DiBlasi ("DiBlasi"), represented him at the portion of the hearing conducted from June 9, 1993 through September 16, 1993. Sometime thereafter, Dallio made a motion for new counsel because he believed that DiBlasi was not representing him adequately. Specifically, Dallio questioned DiBlasi's impeachment of Copeland, claiming that DiBlasi did not lay a foundation to test his credibility by introducing dozens of inconsistent statements. In December 1994 the motion was granted and O'Grady was assigned.
In requesting to proceed pro se, Dallio also criticized O'Grady, explaining that O'Grady did not pick up the case file until March 1995. Dallio also claimed that O'Grady had never seen the crime scene photographs, which Dallio thought were "relevant to a particular issue during the interrogation." Id. at A9. Furthermore, Dallio was dissatisfied with O'Grady's intention to raise only one issue in the memorandum of law in support of suppression. Without any further colloquy, the court simply asked Dallio: "are you ready to proceed now?" Tr. at 68 (Apr. 19, 1995). Dallio responded "yes," and the court stated "you may proceed." Id. Dallio continued pro se for the remainder of the hearing. O'Grady, however, remained in the courtroom throughout the duration of the hearing as stand-by counsel.
Dallio re-called Copeland and Pierce. Dallio also called Scott Willis ("Willis"), a correction officer at Shawangunk. Willis testified that according to his log book Dallio was still in his cell at 11:30 a.m., the time that Copeland testified that Dallio had signed his first Miranda waiver. On rebuttal, the government called correction officer Edward Carroll, who testified that he escorted Dallio from his cell to the interrogation room at approximately 11:40 a.m., thus marginalizing Copeland's contrary testimony.
After the hearing concluded, the court made the following findings of fact: People v. Dallio, No. 1368-92, at 2 (N.Y.Sup.Ct. Aug. 3, 1995). Furthermore, the court found that during the car ride from Riker's Island to the precinct for arraignment, Dallio ...
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