United States ex rel. Cruz v. LaVallee

• Decision Date: 13 September 1971
• Docket Number: Docket 32124.,No. 373,373
• Citation: 448 F.2d 671
• Parties: UNITED STATES of America ex rel. Juan CRUZ, Appellant, v. J. Edwin LaVALLEE, Warden, Auburn State Prison, Auburn, New York, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

448 F.2d 671 (1971)

UNITED STATES of America ex rel. Juan CRUZ, Appellant, v. J. Edwin LaVALLEE, Warden, Auburn State Prison, Auburn, New York, Appellee.

No. 373, Docket 32124.

United States Court of Appeals, Second Circuit.

Argued December 8, 1970.

Decided September 13, 1971.

Thomas R. Esposito, New York City (The Legal Aid Society and Harry C. Batchelder, Jr., New York City, on the brief), for appellant.

Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and Iris Steel, Asst. Atty. Gen., on the brief), for appellee.

Before LUMBARD and FEINBERG, Circuit Judges, and CLARIE, District Judge.^*

LUMBARD, Circuit Judge:

This case raises fundamental and important problems dealing with whether failure to object to a coerced confession in a New York state court trial, held prior to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), precludes the prisoner from raising the issue in federal habeas corpus proceedings and having a hearing on the voluntariness of his confession. While we believe that the failure to object, by itself, does not constitute a waiver of the right to a hearing on voluntariness, we also recognize that in certain circumstances there can be a "deliberate by-pass" of the right to question the voluntariness of the confession as a matter of trial strategy. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Henry v. Mississippi, 379 U.S. 443, 450-452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). When the record of the state trial reveals such a deliberate bypass clearly and beyond doubt, an evidentiary hearing in the federal courts as to whether there was a deliberate bypass is not required, and the state prisoner is barred from questioning the voluntariness of his confession on federal habeas corpus. As will be shown below, the record of the trial in the instant case manifestly reveals just such a deliberate bypass.

Juan Cruz was convicted by a jury in a New York County court of first-degree murder and second-degree assault; and on May 13, 1960, he was sentenced to life imprisonment. His conviction was affirmed, without opinion, by the New York courts, 12 A.D.2d 894 (1st Dept. 1961), 10 N.Y.2d 738, 219 N.Y.S.2d 410, 176 N.E.2d 916 (1961). His petition for coram nobis relief and for a Huntley hearing on the voluntariness of his confession were denied by Judge Sarafite in the New York County Supreme Court on the ground that he had failed to raise any objection at trial to the voluntariness of his confession. These rulings were affirmed by the Appellate Division, 26 A.D.2d 993, 275 N.Y. S.2d 241 (1st Dept. 1966), and leave to appeal to the Court of Appeals was denied.

Cruz then filed a petition for habeas corpus in the Northern District of New York alleging the unconstitutional admission into evidence of a coerced confession. On August 10, 1967, after studying the lengthy trial record, Judge Port denied the petition, without a hearing, on the ground that Cruz's failure at trial to object to the admissibility of the confession or to request a charge on voluntariness constituted a deliberate bypass of the state procedure for taking such action and precluded him from federal habeas corpus relief. The judge noted further that the

"record from beginning to end demonstrates a consistent, strategic and tactical approach, militating against raising any objection to the voluntariness of the statements made by him and used upon the trial. * * * To have done so in the face of overwhelming testimony against him would have directed the jury\'s attention away from the factors which Cruz and his counsel clearly hoped would influence the jury to reject a murder conviction."

Nevertheless, Judge Port granted Cruz a certificate of probable cause on the ground that "the Court of Appeals of this Circuit has evidently not passed upon the question raised by appellant."

From a study of the 1,400 page record, we agree with the district court that it was the deliberate and consistent trial strategy of the defense not to question the voluntariness of the defendant's confession which was admitted into evidence against him. It follows that Cruz is not free to raise this issue in the federal courts. Accordingly, we affirm the denial of Cruz's petition.

The evidence offered at trial showed that Cruz, a seventeen-year-old boy, was the leader of a gang on the lower East Side of New York City which was known as the Forsyths and consisted mainly of Puerto Ricans, and that the Forsyths were embroiled in a bitter dispute with a rival gang, mostly black, known as the Sportsmen. The events leading to the incident in question here arose initially from a fight between Cruz and "Gypsy" Castro, the leader of the Sportsmen, on August 23, 1959. That evening, angered by the physical beating inflicted on their leader by Cruz, the Sportsmen came down with knives and zip guns to the Forsyths on Forsyth turf. In the ensuing fight, Julio Rosario, a twelve-yearold boy and a friend of Cruz, was stabbed to death by Castro. See United States ex rel. Castro v. LaVallee, 282 F. Supp. 718 (S.D.N.Y.1968). The Forsyths then saw several black boys running with Castro back to Sportsmen territory.

Assuming that the Sportsmen had gone back to prepare to fight the Forsyths, and in revenge for Rosario's death, Cruz and the Forsyths immediately armed themselves with Molotov cocktails and a rifle and headed for Sportsmen territory. Cruz carried the loaded rifle, which he owned, under a raincoat and announced that he was going to shoot somebody. Upon arriving at the park where the Sportsmen were hanging out, Cruz and his confederates stationed themselves on a corner and readied themselves for the attack. Cruz got behind a parked car. Many persons of various ages were walking or sitting in the park, including a group of black boys and girls sitting on a long bench.

At a signal given by Gracias, Cruz's associate and codefendant, one of the Forsyths lit and heaved a Molotov cocktail into the park, causing people to run in confusion. Among those who were running was one Theresa Gee who had been sitting on the bench. Following the bomb came the combined yells of the other Forsyths calling upon Cruz to shoot. Thereupon, Cruz began to shoot at a group of youngsters whom he believed to be Sportsmen. The spraying bullets struck several of the fleeing youngsters; one bullet entered the skull of Theresa Gee as she was running from the bench and killed her. All the testimony was that the shots had come from the corner where Cruz was standing, and from that area the police recovered eight expended shells, all coming from Cruz's rifle. Cruz later admitted to a fellow Forsyth that he had shot a girl.

Cruz was arrested by four detectives at his mother's home sometime between 3:00 A. M. and 5:00 A. M. on August 24. He was taken to the police station and was questioned continuously by a group of detectives from sometime after 3:00 A. M. until approximately 9:42 A. M. at which time he signed a confession. There was some evidence that, at one point during the interrogation, he saw his mother outside and requested the opportunity to speak with her, but was not permitted to do so. As stated above, Cruz was seventeen years old at this time.

At trial the prosecutor read Cruz's confession to the jury, and defense counsel did not object.¹ Instead, Cruz took the stand on his own behalf and explained to the jury his chaotic social background and the reasons and provocations resulting in the gang war. He admitted that he had fired the shots at the Sportsmen and that to his knowledge he was the only one shooting in the vicinity. But he stated that he had not meant to kill anybody, and he tried to develop the circumstances surrounding the shooting to induce the jury to return a verdict for some lesser offense than murder. As Judge Port found, "the thrust of the defense was not to dispute the salient facts of the shooting * * * but to convince the jury that Cruz was acting in response to his environment and a basic instinct of self-preservation." In sum, the defense attempted to depict Cruz as an ill-educated, repentant young man, a product of a broken home and the social chaos rampant on the lower East Side at the time, acting in response to unwarranted aggression and assaults with deadly weapons upon himself and his friends.

Cruz argues on appeal that under Jackson v. Denno, supra, he is entitled to a hearing in the district court on the issue of the voluntariness of his confession. In Jackson v. Denno, the Supreme Court held unconstitutional the New York procedure by which an attack on an allegedly coerced confession could be made only to the same jury which decides the guilt or innocence of the defendant. The Court held that to comply with due process, a defendant must be accorded a preliminary hearing outside of the jury's presence to question the voluntariness of a confession.² Subsequently, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Supreme Court made Jackson v. Denno retroactive.

According to Cruz, his petition for habeas corpus, as well as the trial transcript, clearly demonstrate a valid claim of a coerced confession; and since the trial here preceded Jackson v. Denno by four years, his failure to object to the introduction of that confession at trial does not preclude him from now having a hearing on the voluntariness of the confession. Cruz contends that the failure to object was dictated by the unconstitutional pre-Jackson v. Denno New York procedure: the defense could either challenge the confession as coerced, knowing that the jury would in any event hear the confession, or it could meet the confession by forgoing any objection to it and attempting to explain it and the underlying circumstances. The fact that defense counsel chose the latter in this situation, Cruz argues, should not deprive him of his right to a hearing...