United States ex rel. Rose v. LaVallee

• Decision Date: 27 October 1972
• Docket Number: No. 113,Docket 72-1619.,113
• Citation: 468 F.2d 1288
• Parties: UNITED STATES of America ex rel. Pasquale DELLE ROSE, Petitioner-Appellee, v. J. Edwin LaVALLEE, Superintendent of Clinton Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

468 F.2d 1288 (1972)

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

No. 113, Docket 72-1619.

United States Court of Appeals, Second Circuit.

Argued September 14, 1972.

Decided October 27, 1972.

Allan L. Blumstein, New York City, for petitioner-appellee.

Hillel Hoffman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Irving Galt, Asst. Atty. Gen., of counsel), for respondent-appellant.

Before FRIENDLY, Chief Judge, and LUMBARD and FEINBERG, Circuit Judges.

FRIENDLY, Chief Judge:

We agree with the district judge that "This 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 promptly retried without use of two confessions which the district court held to be involuntary. The issue of voluntariness had been decided adversely to petitioner in an unreported decision by Justice Gellinoff in the Supreme Court of New York for Bronx County in 1968; his decision was unanimously affirmed by the Appellate Division, First Department, People v. Rose, 33 A.D.2d 657 (1969), and the Court of Appeals, 27 N.Y.2d 882, 317 N.Y.S.2d 358, 265 N.E.2d 770 (1970); and certiorari was denied, 402 U.S. 913, 91 S.Ct. 1395, 28 L.Ed.2d 656 (1971).

In Delle Rose's pre-Jackson v. Denno trial, the prosecution sought to prove and his confessions supported the following story: Delle Rose, consumed with jealousy, had determined to kill his wife and purchased a shotgun for that purpose. In the early morning of March 9, 1963, he placed the gun against the floor of the family car so that its muzzle pointed into the back of the driver's seat. Using a wire hanger and a length of cord, he then attached the gun to the driver's seat in such a manner that the triggers would be squeezed and the gun fired if the seat were pulled into a forward position. Knowing that his wife drove with the seat further forward than he did and that she was likely to use the car alone later in the morning, he awaited events. For reasons not explained, the device failed to operate, and Mrs. Delle Rose left and returned from a shopping trip without having suffered harm or having noticed the weapon. Soon after her return, the couple departed together on a joint errand, returning shortly thereafter. While his wife parked, Delle Rose reached behind her seat and activated the device manually, causing the gun to fire and kill her. The physical facts were consistent with Delle Rose's confessions.

At trial, Delle Rose denied that he had set or even knew of the device. His claim was that while looking behind to help his wife park he noticed for the first time a "brown paper bag" behind the driver's seat and inadvertently detonated the gun while exploring the "bag's" contents. Understandably unimpressed by this story, the jury chose to credit the confessions, which it presumably found to have been voluntary. An appeal having been taken, the Appellate Division remanded for an evidentiary hearing on the voluntariness of the confessions pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), before the trial judge. Justice Gellinoff, who had seen and heard Delle Rose both at the trial and at the Huntley hearing, ruled the confessions to have been voluntary; as noted, this ruling was unanimously affirmed at both levels of the New York appellate hierarchy.

What has caused the present imbroglio is that, as the district court permissibly ruled, the state judge did not make adequate findings after the Huntley hearing. In the court's words, he "reviewed the evidence, summarized petitioner's testimony, but neglected to say how far he credited—and to what extent, if any, he discounted or rejected—that testimony." Petitioner having thus established "that the merits of the factual dispute were not resolved in the State Court hearing," 28 U.S.C. § 2254(d) (1), a federal hearing was warranted and Delle Rose was relieved of the burden of establishing "by convincing evidence that the factual determination by the State court was erroneous." Choosing largely to credit the version of the circumstances of the confessions given by Delle Rose, who appeared before him, the district judge found the confessions to have been involuntary. As petitioner's counsel has strongly reminded us, these findings are now protected from full review on our part by the familiar provision of F.R.Civ.P. 52(a), applicable by virtue of F.R.Civ.P. 81(a)(2):

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

If we must uphold the factual findings, as we think the Rule compels, although on the cold record we do not feel we would have made them, compare United States ex rel. Fitzgerald v. LaVallee, 461 F.2d 601, 604 (2 Cir.1972), we cannot fault the conclusion of involuntariness.

It is a matter of particular concern when a district court has directed release of a state prisoner convicted of serious crime because of the involuntariness of confessions¹ despite the considered and unanimous contrary view taken by thirteen New York judges who are quite as familiar as federal judges with the principles governing the admissibility of confessions and have displayed no hesitancy in applying them. Still, in abstract theory, we cannot tell in this instance whether the New York courts credited Delle Rose's story of the circumstances surrounding his confessions but still held these to have been voluntary, a conclusion to which we could not agree, or based their holding of voluntariness on a partial or complete rejection of his testimony, in which event the district judge would have been bound to deny the petition. The difficulty would have been avoided if the trial justice had made adequate findings or if one or the other of the New York appellate courts, discerning the inadequacy, had remanded for him to make specific findings with respect to credibility.

Our brother Lumbard suggests that the district judge should have given the New York courts a further opportunity to make credibility findings that would support the result reached in the Huntley hearing rather than rehear the matter himself and that, since he did not, we should now include the possibility of new Huntley findings by the state judge as an alternative condition of release. We might be inclined to do this but for the Supreme Court's summary reversal, 392 U.S. 647, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968), of United States ex rel. Singer v. Myers, 384 F.2d 279 (3 Cir.1967). See also United States ex rel. Gockley v. Myers, 411 F.2d 216 (3 Cir.1969). When the Supreme Court has approved release conditioned on a state's doing something less than a retrial or the hearing of an appeal, see Jackson v. Denno, 378 U.S. 368, 391-396, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964), but see Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), this has been in cases where the state had failed to provide procedures sufficient to guarantee constitutionally protected rights, not where the procedures were sufficient and the petitioner has pursued them but the findings were inadequate. While we join in regretting the release of the petitioner in this case, federal-state relations may be better served in the long run by thus reminding the state courts that they have one, but only one, opportunity to make a determination that will trigger the presumption of correctness under 28 U.S.C. § 2254(d).

Despite our lack of enthusiasm for the result we are constrained to reach, we express appreciation to Allan Blumstein, Esq., for his devoted service to petitioner.

Affirmed.

LUMBARD, Circuit Judge (dissenting):

I dissent. I would remand to the district court with instructions to withhold issuance of the writ for a period of thirty days to enable Justice Gellinoff to make further and more detailed findings of fact to support his conclusion that Delle Rose's confessions were voluntary. From the language used by Justice Gellinoff, it is abundantly clear that he believed the state's witnesses on the issue of voluntariness and did not credit Delle Rose. Of course, it is true that the bare conclusion of voluntariness, without findings of fact, makes it possible that, with respect to conforming to the standards established by federal decisions, the trial judge's findings might be insufficient, or that his conclusion on the voluntariness issue might not follow from the findings. However, it seems unlikely that such an experienced and able trial judge was not fully aware of the applicable standard and that any elucidation by...