United States ex rel. Brown v. LaVallee, 317

• Citation: 424 F.2d 457
• Decision Date: 09 April 1970
• Docket Number: Docket 33127.,No. 317,317
• Parties: UNITED STATES of America ex rel. Roy C. BROWN, Petitioner-Appellee, v. Hon. J. Edwin LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

424 F.2d 457 (1970)

UNITED STATES of America ex rel. Roy C. BROWN, Petitioner-Appellee, v. Hon. J. Edwin LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellant.

No. 317, Docket 33127.

United States Court of Appeals, Second Circuit.

Argued November 19, 1969.

Decided April 9, 1970.

Gretchen White Oberman, The Legal Aid Society, New York City (Milton Adler and Neal Hurwitz, New York City, on the brief), for appellee.

Joel Lewittes, New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, and Samuel A. Hirshowitz, New York City, on the brief), for appellant.

Before LUMBARD, Chief Judge, and DANAHER^* and ANDERSON, Circuit Judges.

LUMBARD, Chief Judge:

Under indictment for first degree murder and faced with overwhelming evidence that in March, 1962, he had stabbed to death one Robert Feinberg whom he robbed after going with him to a hotel room for a homosexual assignation, Roy C. Brown pleaded guilty to murder in the second degree and was sentenced to a term of 40 years to life. At the time he was also under indictment for attempted murder arising out of an attack on another man.¹ Brown pleaded guilty on the advice of four experienced attorneys who were assigned to defend him.

After a hearing in the district court on Brown's claim that his plea had been involuntary, Judge Tyler granted the petition for habeas corpus on a finding that under the "totality of the circumstances" Brown's plea of guilty was not voluntary, and the state took a timely appeal.²

We believe the district court's findings to be clearly erroneous, so far as they are findings of fact. Moreover, we disagree with the district court's conclusion that there was coercion as a matter of law because Brown faced trial by jury with the death penalty. In our view the plea was voluntary in every respect. Accordingly we reverse the order of the district court and direct that the petition be denied.

The evidence that Brown killed Feinberg was overwhelming. Brown was a male prostitute operating in the Times Square area. On a March evening in 1962, he was hired by Feinberg, a Brooklyn businessman, and they went to a midtown hotel. It appears from the record that when Brown left the hotel room Feinberg lay dead on the floor, cut to ribbons by multiple knife slashes. Feinberg's watch was later found where it had been hidden by Brown. The second indictment tells a similar story, except that the other victim, though badly injured, survived Brown's brutal attack.

Brown's lawyers strenuously urged him to accept the district attorney's offer of a plea of guilty to second degree murder on the murder indictment.³ On the particularly shocking facts of the crime, his experienced counsel with considerable justification believed that on the state's evidence, a jury was sure to convict and, in fact, might very well decline to recommend life imprisonment, thereby automatically imposing the death penalty. Brown, however, believed that he would prevail at trial on a claim that he acted in self-defense. Consequently, from the outset he consistently refused to plead guilty and insisted on a jury trial, the only forum available under New York law for contesting guilt on a capital charge. The matter remained at this impasse for over ten months, with defense counsel unable to sway petitioner from his determination to go to trial.

In the hope that she might be able to persuade Brown to plead, the lawyers brought Brown's mother, Mrs. Parker, to New York. She arrived from Texas on Monday, January 7, 1963, and defense counsel attempted to make clear to her the gravity of her son's situation. She accepted their assessment that it was the most dangerous folly for her son to chance a jury trial and the death penalty on his plea of self-defense and then was taken to visit him. The interview took place in a prison reception room, where Mrs. Parker and her son talked for some time in relative privacy; the lawyers were present but at some distance from the two.

The confrontation was stormy and emotional. At the hearing below, Mrs. Parker recalled the conversation:

Well, I asked him if he would plead guilty, and he said no. I said, "Well, don\'t you care anything about me or consider my feelings or your brothers or sisters?" And we talked all like that for a little while, and he begin to kind of look like he had a soft feeling for me. And I realized that maybe he was changing his mind.

Q. Do you recall saying anything to him?

Well I brought out the fact that it would be awfully hard on the family to come here and have to claim a body that had been electrocuted, for a mother to have to do something like that.

Brown recalled:

My mother started to talk to me. She told me that she had talked to the lawyers about the case, that they had told her that I was going to the electric chair if I didn\'t plead guilty.

I tried to explain to my mother that I didn\'t believe that the jury was going to find me guilty of murder, that I wanted a jury trial, and that she didn\'t have anything to worry about.

However, she had already talked to the lawyers and her mind was made up on that point, that I was going to the electric chair, and she explained to me about the other members of the family, my two brothers and a sister, that were younger than I, and she said "You should at least think about them."

She kept pleading with me to plead guilty and I kept telling her that I was not going to do it. She finally became hysterical and very upset, and I said "All right, try to be calm. I\'ll plead guilty. You won\'t have nothing to worry about."

And at that point she informed the lawyers that I had changed my mind * * *

Brown then wrote out and signed a letter dictated by his lawyers, in which he expressed his intention to plead guilty. Two days later, after another visit with his mother at which the above scene was largely repeated, he appeared before the state trial judge and pleaded guilty to murder in the second degree.

Soon thereafter with his mother back in Texas, Brown decided that the plea had been a mistake. He wrote a letter to the trial judge asking to be allowed to withdraw the plea and notified his lawyers to the same effect. In line with this decision he refused to talk with the probation officer who visited him in jail after the plea to compile a presentence report; similarly, he would not see a court-appointed psychiatrist on the grounds that, as he intended to contest his guilt, it would be improper for him to talk with an officer of the court. The trial judge, however, refused to allow Brown to withdraw the plea.

From these facts Judge Tyler concluded that in the totality of the circumstances the plea was not voluntarily made. We do not agree.

Occasionally, an inquiry into the voluntariness of a plea can focus on the relatively simple question of competence,⁴ but more often the determination requires, as here, a search for the considerations which were instrumental in causing the defendant to choose to plead guilty. If among the considerations is distress created by physical or mental coercion introduced by the state or the trial court, the plea is constitutionally defective. Thus, as Judge Tyler observed, we must ask not only whether the defendant knew what he was doing, but also why. See Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).

Brown's belief that he had a good defense to the charge was ranged against the well-considered advice of his lawyers and the pleading of his mother. All of his closest advisors believed that he would certainly be found guilty by a jury and that he might well be sentenced to death. The lawyers in good faith presented their experienced assessment of Brown's situation. Brown's mother forced him to consider the effects which a conviction of murder in the first degree, and perhaps execution, would have on the family.

The realities of the defendant's situation and the shattering effect of an unsuccessful defense are the very ingredients of a rational choice for one in Brown's position. In the months of the prosecutor or the trial judge, these statements might have been coercive; coming from his lawyers and his mother, they were sound advice.

Quite properly Judge Tyler did not consider the state's offer of a plea bargain as a coercive intrusion on Brown's deliberation. See Shelton v. United States, 246 F.2d 571 (5th Cir.), rev'd on confession of error by the Solicitor General, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958); ABA Standards Relating to Pleas of Guilty §§ 3.1(a), 6.4-6.5 (1968).

To say that Brown's will was over-borne is an unrealistic assessment of his situation. If his will is defined as a predetermination to contest his guilt, certainly this was overcome: the proposition is self-evident, for almost every claim that a plea was coerced involves an initial determination not to plead guilty. Indeed, almost every guilty plea is preceded by a plea of not guilty. When, however, Brown's will is assayed at the time he had reached a reasoned assessment of all the factors militating for and against a plea, it is apparent that his decision was a free and rational choice.

Certainly, this was a difficult, even a traumatic, decision, but we are not prepared to say in the totality of the circumstances that it was not the product of a rational assessment of the situation, based on the relevant consideration advanced by those who had petitioner's welfare at heart.

For these reasons we hold that Judge Tyler's finding that in the totality of the circumstances Brown's plea was involuntary was clearly erroneous and so it must be reversed.

The alternative ground employed by Judge Tyler for granting the writ is equally unsatisfactory. He relied on United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which the Supreme Court held unconstitutional a portion of the Federal Kidnapping Act, 18 U.S.C. § 1201(a) (1964). That section provided that a defendant who...