Terry v. LeFevre
| Decision Date | 23 November 1988 |
| Docket Number | D,No. 179,179 |
| Citation | 862 F.2d 409 |
| Parties | Patrick TERRY, Petitioner-Appellant, v. Eugene S. LeFEVRE, As Warden of the Clinton Correctional Facility, Respondent- Appellee. ocket 88-2246. |
| Court | U.S. Court of Appeals — Second Circuit |
Morgan Kennedy, New York City, for petitioner-appellant.
Jeanette Lifschitz, Asst. Dist. Atty., Queens County (John J. Santucci, Dist. Atty., Gary S. Fidel, Asst. Dist. Atty., Queens County, Kew Gardens, N.Y., of counsel), for respondent-appellee.
Before MESKILL, KEARSE and MAHONEY, Circuit Judges.
Petitioner-appellant Patrick Terry appeals from a judgment and order entered on May 9, 1988 in the United States District Court for the Eastern District of New York, Weinstein, J., which denied his petition for a writ of habeas corpus.
Terry sought relief from a sentence imposed after he was convicted of murder in the second degree, N.Y. Penal Law Sec. 125.25(2) (McKinney 1987), attempted murder in the second degree, N.Y. Penal Law Secs. 110.00, 125.25(1) (McKinney 1987), and criminal possession of a weapon in the second degree, N.Y. Penal Law Sec. 265.03 (McKinney 1980), following a jury trial before the Supreme Court of the State of New York, Queens County, Browne, J. A codefendant, Donald Robertson, was acquitted of all charges. Terry received consecutive indeterminate prison terms of from twenty-five years to life on the murder conviction, eight and one-third to twenty-five years on the attempted murder conviction, and five to fifteen years on the possession of a weapon conviction. The Appellate Division reversed the attempted murder conviction and provided that the two remaining sentences run concurrently. People v. Terry, 104 A.D.2d 572, 479 N.Y.S.2d 278 (2d Dep't 1984). Leave to appeal to the Court of Appeals was denied.
Terry filed a petition for a writ of habeas corpus in the district court alleging, inter alia, that (1) his family's attempt to contact their attorney was frustrated, necessitating suppression of his subsequent confession and the murder weapon which was recovered following the arrest, and (2) the murder weapon and confession were obtained as a result of promises and inducements by the police. In denying the writ, the district court held that "there was no violation of Miranda rights at all, nor was there a violation of any Sixth Amendment independent rights here." J.App. at 255. In addition, the district court held that "there was no coercion at all." Id. at 257-58. Judge For the reasons stated below, we affirm the district court's denial of the petition.
Weinstein granted a Certificate of Probable Cause for an appeal.
On September 26, 1979, several Black people were standing in front of a bar in Queens, New York when gunshots from a passing car were fired at the group. One person was killed and another was injured. Based on several leads, the police suspected that Terry, who is White, was the assailant. On September 27, 1979, Terry was given his Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and questioned by Detective James Donelan about the shootings. Terry denied any involvement in the incident. Subsequent investigation by Detective Donelan revealed that Terry had in fact been involved in the shooting.
On Saturday, September 29, 1979, at approximately 4:30 p.m., Detective Donelan and several police officers went to Terry's home, which he shared with his mother, a sister and her family. Terry was arrested and advised of his Miranda rights. He indicated that he understood each of those rights, and continued to proclaim his innocence. Terry and his mother signed an agreement consenting to a search of the premises, but the search failed to produce the murder weapon.
While the police were in the Terry home, Mrs. Terry started to look through a telephone book to locate the phone number of her attorney, Milton Jacobowitz. An unidentified police officer asked Mrs. Terry what she was doing. When she responded that she was attempting to reach an attorney, the officer said "[d]on't you know it's Saturday you can't reach him till Monday." Br. of Appellant at 5. Mrs. Terry then ceased attempting to call her attorney, but did call him at approximately 10:00 p.m. Saturday evening. Attorney Jacobowitz did not meet with Terry that evening, but agreed to meet Mrs. Terry the following day. By the following day, however, the critical events complained of on this appeal had already occurred.
Terry was taken to the police station and questioned late Saturday afternoon. At approximately 6:00 p.m., he agreed to appear in a police lineup without an attorney representing him. Two witnesses identified Terry as the assailant from this lineup.
Terry was later interviewed by Assistant District Attorney (ADA) Herold. Herold advised Terry of his Miranda rights, and Terry indicated that he understood his rights. The following exchange then occurred:
Herold: Now that I have advised you of all of your rights, are you willing to answer questions without an attorney present?
Terry: Are they gonna be the same questions that the officers asked me the last time?
Herold: ... I'll tell you this; you can stop at any time. Does that make you feel more comfortable? Okay? All right. Let's go to Tuesday, the 25th, all right?
Terry: Um hmm.
J.App. at 88. The petitioner then proceeded to answer questions, and recounted the same version of the facts that he had previously told to Detective Donelan, denying any involvement in the shooting.
While in custody, Terry became worried about being attacked by Black inmates at Rikers Island, the prison to which he would be sent, once the inmates became aware of the details of the crime charged. At approximately 10:30 p.m., the petitioner told Detective Donelan that he wished to make a deal with the police and that he could lead them to the murder weapon. In exchange for leading the police to the gun, Terry requested that (1) he be placed in a segregated cell away from Black inmates at Rikers Island, and (2) the person who was then in possession of the gun not be prosecuted. The police agreed to the conditions. Terry then led them to the murder weapon.
Terry was then taken back to the police station and again advised of his Miranda rights. He agreed to speak without an attorney present and admitted that the gun
that the police recovered was the one that he had used in the shootings.
The district court's determination that there was no Miranda violation in either Terry's questioning, his leading the police to the gun, or his confession, was not erroneous. It is clear that Terry was advised of his Miranda rights several times during the investigation, including once immediately before he made his confession. Terry never requested an attorney and was willing to speak without one being present. Additionally, Terry knew two days before his arrest that he was a suspect in the crime, thus he had ample time to contact an attorney if he so desired.
Mrs. Terry's attempt to contact an attorney did not constitute the invocation of Terry's right to counsel. The record does not show that Terry exercised his right to counsel by requesting that his mother try to reach an attorney. See United States v. Lilla, 534 F.Supp. 1247, 1279 (N.D.N.Y.1982). Although " '[we must] give a broad ... interpretation to a defendant's request for counsel,' " United States v. Gotay, 844 F.2d 971, 974 (2d Cir.1988) (quoting Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986)), there is no legal support for the argument that Mrs. Terry could invoke the right to counsel on behalf of her son. Absent a showing that Terry desired an attorney and directed his mother to obtain counsel for him, we conclude that Terry's right to counsel had not been invoked. Terry had the opportunity to either request an attorney on his own behalf or direct his mother to obtain an attorney for him. He declined to do either. Thus, there was no violation of his right to counsel.
Terry's contention that his Sixth Amendment rights were violated when the police told his mother that she would not be able to reach an attorney until Monday is without merit. The record is clear that the officer did not prevent Mrs. Terry from contacting an attorney or forbid her to do so. The officer merely noted that it would be difficult to reach an attorney at that particular time. The district court's finding that the officer's intention was to advise Mrs. Terry of facts, not to coerce her or prevent her from contacting an attorney, J.App. at 253, was not clearly erroneous. In fact, Mrs. Terry contacted her attorney later Saturday night.
Terry contends that he did not make a specific waiver of his right to counsel in response to ADA Herold's reading of his Miranda rights. Waiver of Miranda rights must be knowing, intelligent and voluntary, but once counsel is requested, all interrogation must cease until an...
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