Appeal from denial of petition for writ of habeas corpus attacking judgment of conviction on charges of murder and possession of weapon. Affirmed.
Before Oakes, Circuit Judge, and Blumenfeld*fn* and Mehrtens,*fn** District Judges.
In the early morning of July 4, 1970, three assailants robbed the Star Taxicab Garage and murdered the dispatcher on duty. Three Star employees identified the petitioner, Joseph Allen Wilson, as having been on the premises before the crime. Two testified that they had seen Wilson, a former employee, running from the scene after the incident, cradling money in his arms.
Four days later Wilson voluntarily surrendered himself to the authorities. He was promptly arrested and advised of his constitutional rights by Detective Walter Cullen. Wilson acknowledged seriatim that he understood each of his rights. At the conclusion of the recitation of rights, Cullen asked Wilson if, understanding all of his rights, he wished to make a "statement." Wilson replied, "No." The officer then queried, "Well, would you care to tell me what you did on July 4th?" Wilson responded affirmatively and revealed to Detective Cullen that he had been at the scene and had witnessed the crime, but insisted that he had not been personally involved. Wilson claimed to have fled the premises for fear of being blamed.
Wilson concluded his narrative with the words, "And that's all." Cullen asked Wilson if he would care to tell him where he was between July 4th and the 8th. Wilson emphatically replied, "No, that's all I have to say." At that point the questioning ceased, and Wilson was removed to a detention cell. Counsel was subsequently assigned to represent him.
Wilson's cellmate, Benny Lee, had previously agreed to act as an informant for Detective Cullen. Lee was specifically instructed not to inquire or question, but to keep his ears open for information which could lead to the apprehension of Wilson's accomplices.
Initially, Wilson repeated to Lee the same version of the facts that he had related to Cullen. Lee's only comment was that the story did not sound too good. By the end of the third day, Wilson made an auricular confession to complicity in the robbery and murder.
Wilson was indicted and charged with common law murder and possession of a weapon as a felony. Prior to trial, Wilson moved to suppress his statements to Cullen and Lee. In accordance with People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), the state trial judge held a pre-trial hearing on the issue of the admissibility of the inculpatory statements made by Wilson. The court ruled adversely to Wilson, and the statements were admitted at trial. The jury returned a verdict of guilty on both counts, and Wilson was sentenced to a term of from twenty years to life on the murder conviction and to a concurrent term not to exceed seven years on the weapons count. The conviction was affirmed by the state appellate court and leave to appeal to the New York Court of Appeals was denied.
The instant appeal is taken from the district court's order denying Wilson's petition for a writ of habeas corpus. Wilson cites as error the admission at trial of his statements to Cullen and Lee, and also challenges his conviction on the grounds that he was denied a speedy trial and that the denial of his discovery motion made it impossible for him to adequately prepare his defense.
Wilson contends that the use at trial of his statement to Detective Cullen violated his privilege against self incrimination under the Fifth and Fourteenth Amendments. He argues that his initial refusal to make a statement was undermined by continued interrogation. The district court found that despite Wilson's hesitance at the outset, the subsequent remarks to Cullen were clearly voluntary and were not coerced. Wilson submits that the district court's finding disregards the clear command of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) that "interrogation must cease" if an individual "indicates in any manner . . . that he wishes to remain silent," and that any subsequent statement "cannot be other than the product of compulsion." 384 U.S. at 474, 86 S. Ct. at 1628.
When the Miranda Court decreed that the interrogation must cease upon invocation of the right of silence, it did not create a Per se Proscription of indefinite duration upon any further questioning. The Court clarified the Miranda Holding in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), where it approved the resumption of custodial interrogation following renewed warnings. The Court determined that the admissibility of a statement made after a suspect has exercised his right to remain silent depends on whether his "right to cut off questioning" has been "scrupulously honored." 423 U.S. 96 at 103, 96 S. Ct. 321, 46 L. Ed. 2d 313.
Mosley buttressed this court's antecedent conclusion in United States v. Collins, 462 F.2d 792 (2nd Cir.) cert. denied 409 U.S. 988, 93 S. Ct. 343, 34 L. Ed. 2d 254 (1972), that questioning can resume after new warnings have been given. In Collins the defendant was advised of his rights and questioned no less than six times during 21 hours in custody before confessing to participation in a robbery. Government agents advised the defendant of his right to halt any questioning, and the interrogation immediately ceased when the defendant indicated that he did not want to discuss the case. This court held that the police may ask a defendant to reconsider his refusal to answer questions and stated:
So long as such reconsideration is urged in a careful, noncoercive manner at not too great length and in the context that a defendant's assertion of his right not to speak will be honored, it does not violate the Miranda mandate.
Collins Represents an attempt to balance the exigencies of criminal investigation with the strictures of Miranda. The Miranda Court recognized that custody creates an inherent compulsion on an accused to incriminate himself. Miranda's prophylactic requirements were devised in part to counteract the coercive pressures of the custodial setting, and to assure with reasonable certainty that an in-custody confession is the result of a knowing and voluntary waiver of an individual's privilege against self incrimination. Collins suggests that in some instances persistent yet moderate interrogation may be permitted when accompanied by sincere affirmations of the accused's constitutional rights and by efforts to temper the coerciveness of the custodial atmosphere.
The absence of "badgering from relentless interrogators" is even more apparent in the instant case than in Collins. 462 F.2d at 797. Cullen's question, "Would you care to tell me what you did on July 4th?" could fairly be construed as an explanation to Wilson that a "statement" need not be a confession and as an attempt to ascertain the scope of Wilson's refusal to make a "statement." It would reasonably be consistent with the officer's experience to believe that a suspect who voluntarily surrenders to the authorities, acknowledges that he understands each of his rights and does not request counsel may well wish to offer an exculpatory statement. Indeed, Justice White in his concurring opinion in Michigan v. Mosley, Warned against a construction of the Fifth Amendment which would "imprison a man in his privileges" and which would thwart the ability of a suspect to explain a particularly incriminating fact or to supply an alibi that would result in his immediate release. 423 U.S. at 109, 96 S. Ct. at 329, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S. Ct. 236, 87 L. Ed. 268 (1942).
When asked if he would care to talk about what he did on the day of the crime, Wilson's response was an unhesitating and unequivocal "Yes." His exculpatory version of the facts was related in narrative fashion and not in response to a series of questions by the officer. The record reveals that it was Wilson's decision to terminate the session. When he indicated that he had nothing further to say, Wilson was promptly removed from ...