Lumbard, Chief Judge, Anderson, Circuit Judge, and Wyatt, District Judge.*fn*
The appellant and a co-defendant Louis Rivera were convicted of murder in the first degree on November 19, 1948 by a jury in the New York Supreme Court, and both men were sentenced to life imprisonment. Appellant's principal argument raises the issue of whether a written confession introduced in evidence at his trial violated his constitutional rights.
We need not restate the pre-Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) history of this case, which is set out in this court's opinion in United States ex rel. Allen v. Murphy, 295 F.2d 385 (2 Cir. 1961). There we denied relief for failure to exhaust state remedies. Following Jackson v. Denno and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), appellant petitioned for a writ of error coram nobis in the Supreme Court, Erie County, claiming that his confession was involuntary. A hearing was held before Justice Fisher and relief was denied in a memorandum dated July 28, 1965 (unreported). This denial was affirmed without opinion by the Appellate Division, People v. Allen, 25 A.D.2d 955, 271 N.Y.S.2d 576 (4 Dept. 1966), and leave to appeal to the Court of Appeals was denied on July 14, 1966. The present application followed.
The nub of the appellant's contention on appeal is that his written confession resulted from an unreasonable detention, and that any statement so obtained should have been excluded. In effect, he argues that his detention as a material witness was a sham and was designed solely to obtain a confession from him.
Viewing the evidence most favorably to the State, we shall briefly summarize the factual setting.
About 3:00 a.m. on July 8, 1948, one Walter Willet, an elderly white man died as a result of one or more blows inflicted upon him by certain persons at the corner of Clinton Street and Michigan Avenue in the City of Buffalo. William Bird testified that he observed two Negroes and a white man on the street below from a third floor window. He observed one of the Negroes, whom he identified as Louis Rivera, strike the white man, who then fell to the ground. He saw both men lean over the body and then run down the street. At the trial, the two Negroes were identified by Bird as the appellant and his co-defendant Louis Rivera.
Another eyewitness, Henry Nowak, testified that he saw two Negroes striking a white man, but he added that he was not sure it was the two defendants.
The testimony of these two witnesses, in addition to the confessions of Allen and Rivera, formed the principal basis for the conviction.
Between 1:00 a.m. and 2:00 a.m. on July 17, 1948, the appellant was arrested on information received from Bird, who accompanied the arresting officer Sammon and pointed out Allen as the man who had been with Rivera nine days earlier at the time of the homicide. Allen was held at the jail at police headquarters for two days, and on July 19, 1948 he was "brought over to the District Attorney's Office and committed as a material witness in the death of Walter Willet." He was received at the Erie County Jail on July 19 with a notation in the jail's records that he was being "committed as a material witness and held for the Grand Jury by Justice Wechter." The appellant was therefore held in jail from July 17 to July 24, when he made the confession.
On July 17, 1948, the morning appellant was arrested and booked as a material witness, he was interrogated at police headquarters by at least two officers. He was interrogated again on July 19, 1948, and although Sergeant Klenk testified that he did not believe that either he or any of the men working with him talked to appellant in the period from July 19 to July 24, appellant was taken by police officers on a trip in an automobile during which time he was questioned and asked to identify the location of Rivera's residence, which he did.
At around midnight of July 23, 1948, Rivera surrendered himself at a local police precinct and was taken directly to police headquarters where he made a statement and was booked for first degree manslaughter. At about 1:45 p.m. on July 24, after Rivera had signed a full statement involving himself in the killing of Willet, appellant was taken from the county jail to the detective bureau at police headquarters for further interrogation. At first appellant, as he had throughout his detention, denied knowing anything about the crime. Rivera was then brought in, and he said that appellant was with him at the scene of the crime. Appellant then signed a two-page confession at around 3:00 p.m. on July 24, 1948, following seven days of detention. On July 26, 1948, nine days after being taken into custody, Allen was arraigned before a magistrate and charged with murder in the first degree.
At the trial counsel for appellant objected to the introduction of appellant's statement on the grounds that appellant was not advised of his rights, that he was without counsel throughout the detention, that the statement was coerced by threats of bodily harm and by the use of subtle psychology, and that the statement was procured after a detention of unreasonable length of time. Although appellant claimed at his Huntley Hearing that he was physically abused during the pre-confession detention and that he had requested and been denied counsel, these claims were not made at the trial; the police officers denied these latter allegations in testimony at the Huntley Hearing. Noting that the appellant had made no allegations of police brutality previously, Justice Fisher, in his opinion following the Huntley Hearing held:
"On the evidence submitted it is clear that the signing of the confession or statement by the defendant was not brought about or induced by fear or threats and ...