Appeal from an order granting a Writ of habeas corpus by the United States District Court for the Southern District of New York, Honorable Kevin Thomas Duffy, Judge, on the ground that petitioner's confession had been wrongly admitted at his state trial because it was involuntary.
Moore, Smith and Mansfield, Circuit Judges.
In 1968, Petitioner Walter Wolfrath was convicted in the New York courts for the robbery of the Don-Lee Studios in New York City in 1966.*fn1 Aside from a positive in-court identification by the owners of Don-Lee, one of whom had had the opportunity to observe the robber, face-to-face, for about six to eight minutes, Wolfrath's two confessions may have contributed to the verdict. The first of those confessions was made to a detective, who at the time was without knowledge of the Don-Lee incident, while Wolfrath was in a hospital recovering from surgery to repair a bullet wound sustained in an unrelated robbery attempt. The second confession, substantially the same as the first, was made the next day at a second hospital, to the detective who was working on the Don-Lee case. Both confessions were the subject of a state pretrial Huntley hearing to determine voluntariness, see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), and both confessions were admitted at trial. Wolfrath's convictions were affirmed on appeal. People v. Wolfrath, 32 App.Div. 2d 742, 301 N.Y.S.2d 408 (1st Dept. 1969), aff'd, 26 N.Y.2d 943, 310 N.Y.S.2d 505, 258 N.E.2d 919 (1970).
In 1973, Wolfrath petitioned for habeas corpus relief on the grounds, inter alia, that his confessions had been involuntary and that his pretrial identification, also litigated in the state court prior to trial, had been unconstitutional, thus rendering inadmissible the in-court identification. Both contentions were rejected by the district court*fn2 on the ground that, upon an examination of the minutes of the state court hearings, the statutory presumption of correctness of the state court determinations was not overcome so as to require a hearing, 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). After Wolfrath's request for a certificate of probable cause pursuant to 28 U.S.C. § 2253 was denied by the district court, Wolfrath applied to this court for the certificate. By order dated September 3, 1975, a panel of this court denied the application but remanded to the district court for a hearing solely on the issue of the involuntary confession claim.*fn3 After two rounds of hearings were held, Judge Duffy, considering only the first of the two confessions, found that the statement had been involuntary and should not have been admitted and, further, that the error was not harmless. He ordered that the Writ should issue unless a new trial were granted by the state. We reverse.
I. THE CIRCUMSTANCES OF THE CONFESSIONS
The circumstances surrounding the confessions were established both at Wolfrath's Huntley hearing and at his trial largely by the uncontradicted testimony of the patrolman and the detectives who interviewed Wolfrath: Early in the morning (about 1:30 a. m.) on November 5, 1966, three days after the Don-Lee robbery was committed, Wolfrath checked into the emergency room at St. Vincent's Hospital in New York City. He had a gunshot wound in his forearm. Patrolman James Emburey testified that, at about 1:40 that morning he proceeded to St. Vincent's to conduct an investigation into the circumstances of the bullet wound. When he arrived, he inquired of Wolfrath about the events causing the injury. Wolfrath responded that he had been the victim of an attempted robbery -- that when he tried to fight off his assailant, the gun had gone off. Emburey noted that at the time of this interview, Wolfrath was not in custody, and that his condition appeared "normal" considering that he had a bullet wound.
Later that morning, Emburey and a partner were on patrol in an area near the site where Wolfrath had claimed he had been assailed. For reasons that were not brought forth in the record, the officers stopped a vehicle; Emburey's partner apparently spotted a revolver in the car, and arrested the occupants, Robert and Laura Wyatt. Near the police station, Robert Wyatt tossed a slip of paper on the sidewalk. Although the content of the paper was never permitted to be revealed at the trial, it appears that Wolfrath's name was on it, and that Emburey learned through the Wyatts that Wolfrath had not been the victim of a robbery attempt, as he had claimed, but had rather been injured while attempting a crime, along with Robert Wyatt. One Detective Spano was apparently advised of this new development.
According to Spano's testimony, he proceeded to St. Vincent's to investigate further, taking the Wyatts, who were then in custody, and the revolver seized from the Wyatts, with him. Spano arrived at about 5:00 a. m.
While the Wyatts waited near the door to Wolfrath's room, the detective advised Wolfrath, who was found "half sitting up, half lying down" in bed (Transcript of pretrial hearings, at 66, Joint Appendix at 78), of his Miranda rights, since he was now suspected of having given false information about the wound. Spano then confronted Wolfrath with the fact that the Wyatts were at the hospital. According to Spano's testimony, when told that the true story of the gunshot wound had emerged, Wolfrath stated: "Yes, I was telling a lie." (Tr. at 58, JA at 70). Wolfrath then divulged in some detail how and where his injury had been incurred, namely, when he and Robert Wyatt "were going to do a stick-up to get some money" (Tr. at 59, 60, JA at 71, 72), and acknowledged that the gun now in Spano's possession was that used in the crime, in the course of which he had been accidentally shot.
After admitting the previous false story, concocted to conceal the crime, Wolfrath, according to Spano, then volunteered:
[Spano, quoting Wolfrath]:
"'Look, while I am telling you this, there there is something else I have to tell you.'
Q: Did you ask him or did he say this to you?
A: [Spano]: He was telling me, sir. He said that a few days previous he had done a stick-up and that he stuck up a beauty salon.
Q: Now before you go any further, officer, at that time, on that date, did you have any knowledge whatsoever of ...