United States ex rel. Delle Rose v. LaVallee, 71 Civ. 5111.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtFRANKEL
Citation342 F. Supp. 567
PartiesUNITED STATES of America ex rel. Pasquale DELLE ROSE, Petitioner, v. J. Edwin LaVALLEE, Superintendent of Clinton Correctional Facility, Respondent.
Docket NumberNo. 71 Civ. 5111.,71 Civ. 5111.
Decision Date16 May 1972

342 F. Supp. 567

UNITED STATES of America ex rel. Pasquale DELLE ROSE, Petitioner,
J. Edwin LaVALLEE, Superintendent of Clinton Correctional Facility, Respondent.

No. 71 Civ. 5111.

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

May 16, 1972.

342 F. Supp. 568

Allan Blumstein, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, for respondent; Hillel Hoffman, Asst. Atty. Gen., of counsel.


FRANKEL, District Judge.

Mrs. Gloria Delle Rose was murdered shortly before 1:00 p. m. on March 9, 1963, by means of what a prosecution witness described, without hyperbole, as a "diabolical scheme." The petitioner, who was her husband, was found by a jury to have killed her, apparently because of raging jeolousy over her supposed relationship with a former boyfriend. Sentenced to life imprisonment, he has now been confined for over nine years. He seeks the writ of habeas corpus on the ground that his confessions, comprising nearly all of the vital evidence against him, were not voluntary and rational, but were extracted in circumstances rendering unconstitutional their use in his trial. The ghastly facts of the crime, so far as they are now material, may be summarized as follows:

Petitioner had suffered a back injury in October 1962 which left him unable to work. He was scheduled on Saturday, March 9, 1963, to pick up his medical records from the office of a recently deceased physician who had been treating him and to deliver the records to another physician. On the morning of that day his wife, using their automobile, went to do some shopping, returning about 11:00 a. m. for their trip together for the medical records. With her driving, they went to the home of the late physician in City Island. They arrived back in their Bronx neighborhood somewhat over an hour later, planning to shop locally for some fabric she needed. She proceeded to park the car. Within a few minutes she was dead of gunshot wounds.

The foregoing chronology was not disputed. The heart of the grim controversy related to the question whether petitioner or someone else had rigged the device that caused Mrs. Delle Rose's death.

According to the prosecution's contentions, rested largely upon the confessions in issue, petitioner had purchased a shotgun with which to kill his wife when he became afflicted with jealousy. In the early morning hours of March 9, 1963, about 3:00 a. m. or so, he got out of bed and lodged the shotgun so that its muzzle pointed into the back of the driver's

342 F. Supp. 569
seat. Using a wire hanger and a length of cord, he set the loaded weapon so that the triggers would be squeezed when the driver's seat was pulled forward from the position in which he left it. The plot rested upon his knowledge that his wife drove with the seat farther forward than he did

On the morning of March 9, the confessions and the prosecution's story continued, after the couple had taken breakfast together, she left alone for her shopping trip. Petitioner opened a window and waited to hear the explosion signaling her death. But he was disappointed.

Then, to retrace the account given earlier, they went together to City Island and back to the Bronx. While Mrs. Delle Rose parked, petitioner reached behind her seat and accomplished what he had planned to happen automatically: he pulled the barrel forward, causing the weapon to fire and kill his wife.

Petitioner, who testified in his own defense, denied that he had set or known of the fatal mechanism. While his wife was parking, he claimed, he was turned sideways in the passenger seat, looking through the rear window to help guide her. He noticed a "brown paper bag" and "a mat that was along with it." He reached for this "lump," grabbed the mat to see what was under it, and then heard an explosion. He learned only afterwards the cause of the explosion and the fatal injuries to his wife.

With both the proof of his guilt and the assertion of innocence coming from petitioner's own mouth, the pretrial confessions were of undisputedly critical significance. There were two such accounts: one to police officers at the morgue, where petitioner had been taken to see his wife's body, at about 1:30 a. m.; the second taken by an assistant district attorney in question-and-answer form at about 6:00 a. m. Both were admitted over objections at the trial. Both are again questioned here.

The procedural setting, both in the state courts and this court, should be outlined to make clear the materials underlying the fact findings hereinafter recorded. While the circumstances attending the confessions were explored in the trial, there was no hearing or ruling in the jury's absence as required by the later decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Accordingly, when petitioner appealed his conviction, the parties stipulated that the trial court should hold a Huntley hearing, the familiar New York procedure named for People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). For purposes of that hearing, the prosecution rested upon the trial record. Petitioner also relied upon the record, but took the witness stand to give supplementary testimony. The trial judge rendered a written decision. His opinion reviewed in separate installments the "trial testimony" and the "hearing testimony." As to the former, he said:

"So far as the trial record is concerned, I find that both these confessions are voluntary and were legally admissible in evidence."

He then summarized the trial testimony on both sides, including defendant's assertions (contradicted by the police officers) that he was, in the long hours before confessing, "asked to put his hand in the back seat where the blood of his wife was; that the police threatened to beat him up if he did not admit he killed her; that he was compelled to say by the police that he had killed his wife but that what he meant was that he had done so inadvertently, by placing his hand over the lump; and that, after telling the officer he wanted to see his wife, he did not remember what happened thereafter until 9:00 o'clock in the morning." Similarly, the judge recited the trial testimony of a psychiatrist opining that when petitioner confessed he was so exhausted "he would say yes if you asked him if the moon were made of green cheese."

Although he included these sworn assertions at trial by petitioner and the physician, the trial judge did not state

342 F. Supp. 570
whether or to what extent he rejected any of them

The opinion followed a similar course with respect to petitioner's Huntley hearing testimony. Again, there was a summary, this time in numbered and lettered paragraphs. Again, there was no statement as to how far, if at all, petitioner's account of the underlying historical facts was credited. Once more, taking all the evidence together, the judge recorded his conclusion that the confessions "were, in all respects, voluntary and legally admissible in evidence * * *."

With the record thus finally closed, petitioner pursued his appeals. The Appellate Division (33 A.D.2d 657) and the Court of Appeals (27 N.Y.2d 882, 317 N.Y.S.2d 358, 265 N.E.2d 770) affirmed without opinion, in 1969 and late 1970, respectively. Certiorari was denied on April 19, 1971, 403 U.S. 913, 91 S.Ct. 1395, 28 L.Ed.2d 656. At the end of 1971, the present application was brought.

Following preliminary consideration of petitioner's pro se papers and the State's responses, this court concluded that the state court decision on voluntariness did not rest upon the kind of "adequate" findings that could preclude (or, perhaps, from the stance of this busy trial court, the word is "obviate") an evidentiary hearing in this proceeding. See 28 U.S.C. § 2254(d) (3). The governing principles are familiar now. As was declared in Townsend v. Sain, 372 U.S. 293, 315-316, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963):

"* * * Unless the district judge can be reasonably certain that the state trier would have granted relief if he had believed petitioner's allegations, he cannot be sure that the state trier in denying relief disbelieved these allegations. If any combination of the facts alleged would prove a violation of constitutional rights and the issue of law on those facts presents a difficult or novel problem for decision, any hypothesis as to the relevant factual determinations of the state trier involves the purest speculation. The federal court cannot exclude the possibility that the trial judge believed facts which showed a deprivation of constitutional rights and yet (erroneously) concluded that relief should be denied. Under these circumstances it is impossible for the federal court to reconstruct the facts, and a hearing must be held."

See also Cooper v. Picard, 428 F.2d 1351, 1353-1354 (1st Cir. 1970); Stotts v. Perini, 427 F.2d 1296, 1297-1299 (6th Cir. 1970); Outing v. State of North Carolina, 344 F.2d 105, 106-107 (4th Cir. 1965). This court cannot be "reasonably certain" what facts of possibly coercive or stressful impact the trial judge found from the disputed testimony. The question of constitutional law, though it is easily stated, is surely a "difficult" one, calling for an informed synthesis of the "totality of the circumstances," Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967). As will appear, in this court's ultimate view, it is necessary, even if only some of petitioner's factual assertions are accepted, to grant the relief he seeks.

Having determined that there must be an evidentiary hearing, this court assigned counsel for petitioner. Three witnesses were heard—the petitioner and the two detectives to whom he had confessed. It was agreed, reserving as to questions of relevancy and materiality, that this court, like the state court, could range through the entire state record in addition to assessing the further record made here. Now, having studied the several chapters...

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6 cases
  • Robinson v. Smith, Civ-1973-349.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • May 9, 1978
    ...1352 (2d Cir. 1970), cert. denied, 402 U.S. 1012, 91 S.Ct. 2190, 29 L.Ed.2d 436 (1971); United States ex rel. Delle Rose v. LaVallee, 342 F.Supp. 567, 574, n.10 (S.D.N.Y. 1972). The failure of the police interrogators and the district attorney to advise petitioner of his constitutional righ......
  • U.S. v. Barnes, 77-2097
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 20, 1979
    ...88 S.Ct. 1152, 20 L.Ed.2d 77 (1968) (no medication offered for high blood pressure) and United States ex rel. Delle Rose v. LaVallee, 342 F.Supp. 567, 571, 574 (S.D.N.Y.1972) (back injury left suspect "racked with physical pain"), Rev'd on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed......
  • United States ex rel. Rose v. LaVallee, 113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 27, 1972
    ...is a troublesome case." The State of New York asks us to reverse an order of the District Court for the Southern District of New York, 342 F.Supp. 567, directing the release of Pasquale Delle Rose, sentenced to life imprisonment in 1964 for the premeditated murder of his wife, unless he is ......
  • United States v. Barnes, Crim. A. No. 69-923.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 21, 1981
    ...did not attempt to trick the petitioner in any way, nor is such even alleged here. See United States ex rel. Delle Rose v. LaVallee, 342 F.Supp. 567, 575 Accordingly, based on the totality of the circumstances, the Court finds that the three statements of the petitioner in question were com......
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