United States v. Denno, No. 402

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and MOORE and MARSHALL, Circuit
Citation309 F.2d 573
PartiesUNITED STATES of America ex rel. Nathan JACKSON, Relator-Appellant, v. Wilfred L. DENNO, as Warden of Sing Sing State Prison, Ossining, New York, Respondent-Appellee.
Decision Date02 November 1962
Docket NumberDocket 27662.,No. 402

309 F.2d 573 (1962)

UNITED STATES of America ex rel. Nathan JACKSON, Relator-Appellant,
v.
Wilfred L. DENNO, as Warden of Sing Sing State Prison, Ossining, New York, Respondent-Appellee.

No. 402, Docket 27662.

United States Court of Appeals Second Circuit.

Argued August 21, 1962.

Decided November 2, 1962.

Certiorari Granted January 21, 1963.


Daniel G. Collins, New York City, for relator-appellant.

William I. Siegel, Asst. Dist. Atty., Kings County, N. Y. (Edward S. Silver, Dist. Atty., Kings County, N. Y.), for respondent-appellee.

Before LUMBARD, Chief Judge, and MOORE and MARSHALL, Circuit Judges.

Certiorari Granted January 21, 1963. See 83 S.Ct. 553.

LEONARD P. MOORE, Circuit Judge.

Appellant, under sentence of death as a result of a judgment of conviction of first degree murder in the County Court of Kings County, New York, appeals from an order of the District Court for the

309 F.2d 574
Southern District of New York, denying his application for a writ of habeas corpus. State remedies have been exhausted

The primary appellate question is whether appellant was deprived of his constitutional right to a fair trial because of the introduction into evidence of a statement by him which was stenographically transcribed, sometimes herein referred to as a confession. The answer turns upon the circumstances under which it was given. We find no such deprivation and affirm the order.

In the early morning of June 14, 1960, appellant while escaping from the scene of an armed robbery committed by him shot and killed a police officer. He was wounded by the police officer in the exchange of gunfire and sought hospitalization. Shortly after admission to the hospital while in the X-ray room and at approximately 2:00 A.M., appellant said to a detective, "I shot the colored cop. I got the drop on him." At 3:55 A.M., an assistant district attorney took a question and answer statement from appellant, immediately after appellant had been given "demerol", a drug with pain alleviating properties, as a pre-anesthetic, pre-operative procedure. There was medical testimony that except perhaps in the case of children demerol "does not manifest its action" until about fifteen minutes after injection. The defense offered no proof contradicting the prosecution's medical witness on this point. Nor was there any dispute that the questioning of appellant lasted no more than about five minutes.

On the trial appellant was represented by an attorney, a former judge, experienced in the defense of criminal cases. The statement (Exhibit 14) was offered in evidence during the testimony of a stenographer employed by the District Attorney of Kings County. The trial record reads: "The Court: Any objection? Mr. Healy appellant's counsel, No." The Court inquired as to whether appellant's counsel had a copy of the statement and was advised by counsel in the affirmative. The statement contained appellant's version of the events leading up to the shooting. Appellant said in substance that in the early morning he went to a hotel with a woman to get a room but not with an original intent to do a "stickup"; that when he was recognized by the desk clerk he decided to rob her which at gun-point he proceeded to do; that he herded the clerk and others into a room; that on the street he was accosted by a police officer who insisted that appellant accompany him; that he threw the officer to the ground; that the officer drew his gun but appellant "got mine out first" and in the firing he (appellant) "beat him to it." On cross-examination appellant's counsel brought out the five-minute duration (3:55 A.M. to 4:00 A.M.) of the statement and appellant's claim during that period that he could not go on.

Appellant took the stand in his own defense. He gave a detailed account of the events of the day, his drinking, his going to the hotel with the woman, the robbery, his struggle with the police officer, the officer reaching for his gun but appellant getting his gun out first, the exchange of shots and the hospitalization. Appellant claimed that, although they gave him some water once, he was told that he could not have any more unless he answered questions.

Upon rebuttal, the prosecution offered medical testimony that demerol would not take effect for about fifteen minutes. In addition, testimony was given by two hospital attendants present during the period involved that appellant was not told that water would be refused unless he answered questions. Their testimony was that they told him that hospital procedure required that they not give water to pre-operative patients the operation commenced at 5:00 A.M.. The events at trial indicate that it was the decision of defendant's skilled counsel (1) not to object to the introduction of appellant's statement and (2) to have appellant testify in his own behalf. The prosecution had the right "to rely on the decisions made by counsel and the defendant himself." (United States v. Richmond, 2

309 F.2d 575
Cir., 1961, Reid v. Richmond 295 F.2d 83, 90, rehearing denied, October 11, 1961, certiorari denied, 368 U.S. 948, 82 S.Ct. 390, 7 L.Ed.2d 344, rehearing denied 368 U.S. 979, 82 S.Ct. 485, 7 L.Ed.2d 441, leave to file second petition for rehearing denied, 369 U.S. 881, 82 S.Ct. 1145, 8 L.Ed.2d 285 (1962))

Despite the admission of appellant's statement without objection, the trial court, in effect, preserved for appellant the right to attack it because after appellant had rested and during rebuttal the trial court said, "Judge Healy raised the point in cross-examination that sedation of a kind was administered to the patient. * * * And therefore he is going to contend and he does now that the confession hasn't the weight the law requires. Is that your purpose?" To this counsel said, "That's correct".

The prosecution then called witnesses limited to this point, as abovementioned, denied that water was refused unless questions were answered.

The summation of appellant's counsel clearly discloses his trial strategy both as to his unwillingness to object to the statement and as to his calling appellant to the stand. He must have been convinced as a result of his almost fifty years of experience that he would serve his client best if he did "not ask you the jury to acquit Jackson" but to argue it "on a proposition of law, that any guilt that is his is murder in the second degree, or manslaughter * * *." In summary, his approach was to convince the jury, if he could, that the killing was "without the premeditation" (murder in the second degree)...

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12 practice notes
  • United States ex rel. Jackson v. Follette, No. 527
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 23, 1972
    ...collateral attack by way of habeas corpus began. After defeats in the district court, 206 F.Supp. 759 (S.D. N.Y.1962), and in this court, 309 F.2d 573 (2d Cir. 1962), the landmark case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (5-4 decision), held unconstitutio......
  • Trotter v. Stephens, No. PB-64-C-62
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • April 30, 1965
    ...habeas corpus was denied. Application of Jackson, 206 F.Supp. 759 (S.D.N.Y.1962), aff'd sub nom., United States ex rel. Jackson v. Denno, 309 F.2d 573 (2d Cir. 1962). On appeal from denial of the petition for habeas corpus, the United States Supreme Court held that under the Due Process Cla......
  • Duncan v. State, 7 Div. 614
    • United States
    • Supreme Court of Alabama
    • June 30, 1965
    ...denied, Application of Jackson, D.C., 206 F.Supp. 759, and the Court of Appeals affirmed, United States ex rel. Jackson v. Denno, 2 Cir., 309 F.2d 573. Certiorari was granted by the United States Supreme Court, 371 U.S. 967, 83 S.Ct. 553, 9 L.Ed.2d 538 'to consider fundamental questions abo......
  • Com. ex rel. Butler v. Rundle
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 12, 1965
    ...U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961). Thereafter, Jackson filed a petition for habeas corpus. 206 F.Supp. 759 (S.D.N.Y.), aff'd, 309 F.2d 573 (2d Cir. 1962). It was to review these habeas corpus proceedings that the Supreme Court granted certiorari, 371 U.S. 967, 83 S.Ct. 553, 9 L.E......
  • Request a trial to view additional results
12 cases
  • United States ex rel. Jackson v. Follette, No. 527
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 23, 1972
    ...collateral attack by way of habeas corpus began. After defeats in the district court, 206 F.Supp. 759 (S.D. N.Y.1962), and in this court, 309 F.2d 573 (2d Cir. 1962), the landmark case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (5-4 decision), held unconstitutio......
  • Trotter v. Stephens, No. PB-64-C-62
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • April 30, 1965
    ...habeas corpus was denied. Application of Jackson, 206 F.Supp. 759 (S.D.N.Y.1962), aff'd sub nom., United States ex rel. Jackson v. Denno, 309 F.2d 573 (2d Cir. 1962). On appeal from denial of the petition for habeas corpus, the United States Supreme Court held that under the Due Process Cla......
  • Duncan v. State, 7 Div. 614
    • United States
    • Supreme Court of Alabama
    • June 30, 1965
    ...denied, Application of Jackson, D.C., 206 F.Supp. 759, and the Court of Appeals affirmed, United States ex rel. Jackson v. Denno, 2 Cir., 309 F.2d 573. Certiorari was granted by the United States Supreme Court, 371 U.S. 967, 83 S.Ct. 553, 9 L.Ed.2d 538 'to consider fundamental questions abo......
  • Com. ex rel. Butler v. Rundle
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 12, 1965
    ...U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961). Thereafter, Jackson filed a petition for habeas corpus. 206 F.Supp. 759 (S.D.N.Y.), aff'd, 309 F.2d 573 (2d Cir. 1962). It was to review these habeas corpus proceedings that the Supreme Court granted certiorari, 371 U.S. 967, 83 S.Ct. 553, 9 L.E......
  • Request a trial to view additional results

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