Jenkins v. Bara

• Decision Date: 30 June 1987
• Docket Number: No. CV 86-4165.,CV 86-4165.
• Citation: 663 F. Supp. 891
• Parties: Robert S. JENKINS, Petitioner, v. Raymond BARA, Superintendent, etc., et al., Respondents.
• Court: U.S. District Court — Eastern District of New York

663 F. Supp. 891

Robert S. JENKINS, Petitioner, v. Raymond BARA, Superintendent, etc., et al., Respondents.

No. CV 86-4165.

United States District Court, E.D. New York.

June 30, 1987.

COPYRIGHT MATERIAL OMITTED

Robert S. Jenkins, N.Y., petitioner pro se.

Denis Dillon, Nassau Co. Dist. Atty. by Peter Shapiro, Mineola, N.Y., for respondents.

Robert Abrams, N.Y. State Atty. Gen., New York City, for respondent.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Petitioner pro se Robert Jenkins has applied to this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's application is denied.

Jenkins was arrested on August 10, 1983 at approximately 3:30 a.m. on a residential street in Merrick, New York. On September 21, 1983, a Nassau County Grand Jury indicted petitioner on one count of burglary in the second degree, one count of possession of burglar's tools and one count of criminal possession of a controlled substance in the seventh degree.

On April 2, 1984, Jenkins was convicted on all counts after a jury trial. On May 9, 1984 he was adjudicated a prior violent felony offender and sentenced to an indeterminate term of 5 to 10 years of incarceration on the burglary conviction and to concurrent, determinate terms of one year of imprisonment on the remaining convictions.

On May 9, 1984, petitioner filed a notice of appeal from that judgment to the Appellate Division of the Supreme Court of New York, Second Department ("Appellate Division"). Petitioner perfected his appeal to the Appellate Division, arguing (1) that he had been seized in violation of his fourth amendment rights and that physical and testimonial evidence obtained as a result of that seizure should have been suppressed, (2) his confession resulted from the violation of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and (3) the trial court committed several errors in its evidentiary rulings and in its instruction to the jury.

On November 15, 1985, the Appellate Division unanimously affirmed petitioner's conviction, without opinion.

In the instant request for a writ of habeas corpus, the petitioner submitted the brief his attorney prepared for his appeal to the Appellate Division, renewing the entire body of claims contained therein.

I.

Petitioner first contends that his initial seizure by police was unreasonable and in violation of the fourth amendment and, as such, the evidence obtained as a result of the seizure should have been suppressed. This Court may not consider the merits of petitioner's argument. A federal court on habeas review may not grant relief on a claim that evidence introduced at trial was the product of an unconstitutional search or seizure where the state provided the petitioner with "an opportunity for full and fair litigation" of the fourth amendment claim. Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976); McPhail v. Warden, 707 F.2d 67, 69 (2d Cir.1983); Gates v. Henderson, 568 F.2d 830, 837 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978); Nelson v. Smith, 618 F.Supp. 1186, 1191 (S.D.N.Y.1985). The Supreme Court in Powell held that the degree of fourth amendment protection provided by the suppression of illegally seized evidence, when weighed against the costs of such suppression to society, is not sufficient to warrant collateral review by a federal court of a search and seizure claim which has been previously decided by two or more judicial levels in the state system. Powell, 428 U.S. at 489-91, 96 S.Ct. 3050-51.

Jenkins was afforded a full and fair opportunity to litigate his fourth amendment claim in the New York State courts. The constitutionality of Jenkins's arrest was challenged at a pretrial suppression hearing pursuant to N.Y.Crim.Proc.Law § 710 and on appeal to the Appellate Division. Accordingly, Jenkins is not entitled to have the merits of his search-and-seizure claim reviewed by this Court.

II.

Jenkins also contends that statements he made while in police custody were admitted into evidence at trial in violation of his privilege against self-incrimination. The statements, Jenkins argues, were a direct result of "subtle maneuvering" by the police officers which amounted to a violation of Jenkins's Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At approximately 3:30 a.m. on August 10, 1983, Jenkins, walking on a residential street in Merrick, New York, was confronted by Police Officer Sharp, who was responding to a call that a burglary had just taken place in that area. Officer Sharp, after observing Jenkins discard a dark object under a parked car, stopped Jenkins, and asked him his name and what he was doing. Jenkins's responses to Sharp's inquiries and Sharp's retrieval of a nail file shaped as a key and brown gloves from under the parked car, led to Jenkins's arrest for burglary and possession of burglar's tools.

Upon arriving at the station house and being informed of his Miranda rights, Jenkins indicated that he understood his rights and did not wish to speak. Despite Jenkins's assertion that he wished to remain silent, he was questioned about the burglary by Detective Zimmerman. During this interrogation Jenkins made certain inculpatory remarks before refusing to answer further questions. These statements were suppressed by the trial court as a violation of Miranda.

After this initial questioning had ceased, Jenkins, while waiting in the squad room for his arrest to be processed, overheard a broadcast over the police radio. The broadcast concerned the discovery of a suspicious automobile in the vicinity of the burglary for which Jenkins was arrested. Officer Sharp increased the radio's volume and soon thereafter another announcement was transmitted identifying the petitioner as the person to whom the vehicle was registered. Sharp then turned to Jenkins and said "I think they found your car." A few minutes later, Jenkins asked to speak to Detective Zimmerman, whom he then told that he had information about drug deals in Roosevelt and that he wanted to speak with an assistant district attorney about "striking a deal." Zimmerman informed the petitioner that he could not speak to an assistant district attorney until 9:00 a.m. and made some remarks indicating that if he wanted to negotiate a deal he would first have to cooperate with respect to the burglary.

After some discussion and another reading of the Miranda warnings, Jenkins agreed to make a statement in which he admitted his criminal conduct regarding the burglary. Jenkins refused to sign the statement until he could speak to an assistant district attorney. This statement, which remained unsigned, was introduced into evidence at petitioner's trial upon the trial court's conclusion, following a suppression hearing, that it was voluntarily given.

Petitioner now argues that the trial court's ruling was in violation of his right against self-incrimination.

The Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) held that a criminal suspect's right to remain silent must be "scrupulously honored," such that the suspect maintains the ability to "cut off questioning" by the police. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). The Supreme Court, in applying Miranda, has defined police interrogation to include not only express questioning but also its "functional equivalent," "which encompasses any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980).

Jenkins argues that Officer Sharp's conduct in turning up the volume and remarking about the broadcast constitutes interrogation in violation of Jenkins's decision to remain silent. Sharp, Jenkins contends, knew that his behavior was likely to elicit inculpatory remarks from Jenkins.

Initially, these facts seemed to present a close question as to whether police conduct in violation of Jenkins's Miranda rights had occurred. The dramatic nature of a suspect listening to developments on a police radio as information is being gathered against him would suggest an atmosphere of psychological pressure. On closer examination, however, it became apparent to this Court that no violation of Miranda had taken place. Stripped of the drama, what remains is a situation in which the suspect was made aware of certain incriminating evidence that the police had obtained and were intending to use against him. Revealing to a suspect evidence damaging to his defense after he has invoked his Miranda rights does not constitute compulsion. United States v. Pheaster, 544 F.2d 353 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977) (confession made while defendant was being transported to jail after agents recited the evidence they had obtained against him, including his fingerprints on a ransom note, held to be admissible despite the defendant's demand to see an attorney); United States v. Hodge, 487 F.2d 945 (5th Cir.1973) (a voluntary waiver of Miranda took place where defendant made incriminating statements following an explanation by law enforcement officials of the charges and the evidence against him, after he had invoked his right to counsel); United States v. Davis, 527 F.2d 1110 (9th Cir. 1975) (defendant's confession, obtained almost immediately after he indicated his desire to remain silent was admissible despite the conduct of FBI agents who asked if defendant wished to reconsider his position and showed the defendant a bank surveillance photograph of himself participating in the robbery). Jenkins was under no greater compulsion to speak than was the...