Fisher v. Scafati, Misc. Civ. No. 69-2-G.

• Decision Date: 13 July 1970
• Docket Number: Misc. Civ. No. 69-2-G.
• Parties: Ronald FISHER v. Palmer C. SCAFATI, Superintendent, Massachusetts Correctional Institution, Walpole.
• Court: U.S. District Court — District of Massachusetts

314 F. Supp. 929

Ronald FISHER v. Palmer C. SCAFATI, Superintendent, Massachusetts Correctional Institution, Walpole.

Misc. Civ. No. 69-2-G.

United States District Court, D. Massachusetts.

December 30, 1969.

Memorandum and Order Following Evidentiary Hearing July 13, 1970.

COPYRIGHT MATERIAL OMITTED

Richard J. Rubin, Gainsburg, Gottlieb, Levitan & Cole, New York City, for petitioner.

David G. Nagle, Deputy Asst. Atty. Gen., Boston, Mass., Lawrence Cohen, Asst. Atty. Gen., Matthew J. Ryan, Jr., Dist. Atty., Western Dist., Springfield, Mass., for defendant.

MEMORANDUM AND ORDER

GARRITY, District Judge.

Petitioner is seeking issuance of a writ of habeas corpus. He is presently in the custody of respondent pursuant to a stayed sentence of death upon conviction for murder in the first degree in the Massachusetts Superior Court for Hampden County after a trial which began on September 26, 1966. By a previous order the court limited consideration of the petition to petitioner's claim that the denial of his motion to suppress and admission into evidence of his confession was in contravention of the decision of the United States Supreme Court in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. This contention of petitioner was fully considered by the Massachusetts Supreme Judicial Court, Commonwealth v. Fisher, 1968, 354 Mass. 549, 238 N.E.2d 525.

At the hearing on the petition, petitioner introduced into evidence the record transcript of the trial on the threshold issue whether in so doing petitioner has overcome the presumption of correctness of the findings of fact made by the trial judge in his order allowing the contents of the confession into evidence. 28 U.S.C. § 2254(d).

The trial court's entire findings with respect to the Miranda issues, after conducting a voir dire, were "that at the time when the suspicion of crime was focused upon defendant, he was advised by the police that he had a right to remain silent, need not answer questions. He had a right to counsel and the services of counsel. And, Lieutenant Shea told him that if he couldn't afford one, that he would be furnished one."

The petition in this court alleges (a) that the warnings required by Miranda were not given timely; (b) that he was not clearly informed that he could have counsel with him while being interrogated and that, if he could not afford counsel, one would be provided for him at State expense; and (c) that he did not understandingly waive his right to retained or appointed counsel during questioning. The same points were raised and preserved at the trial and on appeal.

Under Miranda v. Arizona, supra, certain specific rights under the Fifth and Fourteenth Amendments arise "when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way." Before police officers may question him "about matters that might tend to incriminate him he is entitled to be warned `that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' 384 U.S. at 479, 86 S.Ct., at 1630." Mathis v. United States, 1968, 391 U.S. 1, 3-4, 88 S.Ct. 1503, 1504, 20 L.Ed.2d 381. The Supreme Court's opinion in the Miranda case "iterated and reiterated the absolute necessity for officers interrogating people `in custody' to give the described warnings." Orozco v. Texas, 1969, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311.

The voir dire testimony before the trial judge concerned police interrogation of the petitioner which commenced on the morning of July 11, 1966 and ended with his signing a written confession about 17 hours later at 4:00 A.M. on July 12. He was given various warnings concerning his constitutional rights on the morning of July 11 shortly after the questioning was begun and again on the evening of the same day after a trip to Boston, where he voluntarily submitted to a polygraph examination. Lieutenant Shea, the officer mentioned in the judge's findings, testified that after the petitioner had become a suspect he would not have been permitted to leave the police station to which he had come voluntarily at the request of the police. Two days previously, on July 9, he had been questioned at police headquarters as one of several persons who had been at a party attended by the victim on the evening of the murder. At that time the petitioner denied any knowledge of the crime. Before the interrogation of the petitioner resumed on the morning of July 11, the police discovered an inconsistency between what the petitioner had told them on July 9 and the statement of another person who had been interviewed. It had to do with the petitioner's having borrowed an automobile and left the party alone for approximately an hour.

On the issue of the timeliness of the warnings given the petitioner, the trial judge found that they were given "at the time when the suspicion of crime was focused upon defendant." Obviously the trial judge was employing the standard formulated in Escobedo v. Illinois, 1964, 378 U.S. 478, 492, 84 S.Ct. 1758, 12 L.Ed.2d 977, which determines when the right to counsel arises under the Sixth and Fourteenth Amendments. This was erroneous. In determining the time when warnings required by the Fifth and Fourteenth Amendments must be given, the Escobedo case has been superseded by the Miranda case. See Pallotta v. United States, 1 Cir. 1968, 404 F.2d 1035, 1038. The critical time under Miranda is "when the individual is first subjected to police interrogation while in custody at the station." It may be, as noted in the opinion of the Supreme Judicial Court at 1031, that there is no conflict between the Miranda and Escobedo standards as applied to the case at bar and that Lieutenant Shea's interrogation of the defendant became an in-custody interrogation at the point when Shea observed the scratches and the investigation "focused" on the defendant. But whether the trial judge took the same view, i.e., that the critical times under Miranda and Escobedo coincided, is not stated in his findings and is unclear from the entire record on the voir dire. Cf. Leventhal v. Gavin, 1 Cir. 1968, 396 F.2d 441. The testimony before him on the voir dire dealt as much with warnings given in the evening after the return from Boston as with those given in the morning. The theory of admissibility urged by the prosecution in oral argument upon conclusion of the voir dire was based upon the warnings given in the evening. In employing the Escobedo test, the judge may have considered that the process shifted from investigatory to accusatory and the focus was on the petitioner after he had taken the lie detector test in Boston. Thus it may be that the trial judge's findings with respect to the adequacy of the warnings pertained to those given in the evening and that he made no findings whatever with respect to the adequacy of those given in the morning.

Regarding the content of the warnings given in the morning, the three officers who interrogated the petitioner at Springfield Police Headquarters testified at the voir dire that Lieutenant Shea, soon after observing scratches on the petitioner's neck, told the petitioner "that he was entitled to be represented at all times by counsel. * * * that he could remain silent, and that if he said anything it could be used against him, * * *" When testifying about the warnings given in the evening Lieutenant Shea stated, "At this time I informed him again of his right to an attorney, the fact that if he couldn't afford one, that he would be furnished with one; his right to remain silent; and the fact that anything he said would be used against him." Assuming that the trial judge's findings pertained to the morning warnings, was his finding that Lieutenant Shea told the petitioner that if he couldn't afford an attorney, that he would be furnished one, fairly supported by the record before him? Each of the three police witnesses at the voir dire testified as to what warnings were given in the morning and none of them mentioned the required warning that, if the petitioner could not afford counsel, counsel would be provided for him at State expense. All of them testified explicitly that the threefold warning described by Lieutenant Shea was all that had been given to the petitioner in the morning. The use of the word "again" in the evening warning by Lieutenant Shea does no more than raise a doubt as to the otherwise clear testimony of what was told to the petitioner that morning.

Moreover, it does not appear from the record of the voir dire hearing that at the commencement of the incriminating interrogation petitioner was "clearly informed that he had the right to consult with a lawyer and to have the lawyer with him during interrogation." Miranda v. Arizona, supra, 384 U.S. at 471, 86 S.Ct. at 1626. Lieutenant Shea did tell the petitioner that he was entitled to be represented at all times by counsel. But representation by counsel does not necessarily connote the presence of counsel at the client's side. The same may be said of Lieutenant Shea's evening warning in which the word "again" was used in connection with telling the petitioner of "his right to an attorney."

It has not been disputed in this court that the police were required to give the Miranda warnings to the petitioner no later than the time when Lieutenant Shea first told him that he was entitled to be represented at all times by counsel. Petitioner, of course, is contending that the warnings should have been given at the beginning of the interrogation at police headquarters on the morning of July 11.

The court concludes that the petitioner has established on the basis of the record of the proceedings in the state court (a) that the merits...