Appeal from judgment of United States District Court for the Eastern District of New York, Charles P. Sifton, J., denying appellant's petition for a writ of habeas corpus. Case remanded for further consideration.
Before Moore, Friendly and Feinberg, Circuit Judges.
William Walker appeals from a judgment of the United States District Court for the Eastern District of New York, Charles P. Sifton, J., denying his petition for a writ of habeas corpus. In 1975, appellant pleaded guilty to felony murder in New York State Supreme Court, Kings County, after the state court denied his motion to suppress his confession. He was sentenced to 15 years to life. The judgment of conviction was affirmed by the Appellate Division, Second Department, and the New York State Court of Appeals denied leave to appeal. The chief argument made to us is that Judge Sifton erred in failing to hold that Walker's confession was obtained in violation of his constitutional rights. Walker also contends that, in deciding this question, the district judge should have taken into account testimony given by Walker in the district court rather than relying solely on the record developed at the state suppression hearing. We hold that the district court erred in following the latter course and we remand for further consideration of the petition for habeas corpus consistent with this opinion.
At about 4:00 p. m. on September 4, 1973, appellant and his co-defendants, Roy A. Sanders and Seth Lee Doby, were arrested in connection with the fatal shooting of a storekeeper a short while before, and taken to a station house. Around 5:15 p. m., Detective Arthur Lasky began questioning Doby, who confessed within 15 minutes. Lasky then spoke with Sanders, who also quickly confessed. At approximately 7:15 p. m. Lasky began questioning appellant. Lasky advised appellant of his Miranda rights and asked, "Now that I have advised you of your rights are you willing to answer questions without an attorney present?" Appellant responded negatively to this question and Lasky terminated the interview.
Assistant District Attorney William Weinman arrived at the station house at about 5:30 or 6:00 p. m. and interrogated Doby and Sanders first, obtaining confessions from both of them. Weinman began interrogation of Walker at around 8:20 p. m. after having been informed that he had refused to speak to officer Lasky. Weinman advised appellant of his Miranda rights and the following dialogue then took place:
Q. I've told you all these rights which you have told me you understand. Are you now willing to answer my questions without having a lawyer present?
Q. You want to have an attorney present?
Q. Thank you, the interview is concluded.
At this point the reporter was excused and the next ten minutes are off the record. According to the testimony of Lasky and Weinman at the state suppression hearing, they had a conversation in Walker's presence between themselves concerning the charges against Walker, which included homicide. Apparently surprised at the mention of homicide, Walker asked what he was going to be charged with, and Weinman told him homicide. Walker replied, "(W)hat do you mean homicide? I didn't shoot anyone." Then either Weinman or Lasky responded to the effect that they knew he didn't shoot anyone because Sanders had already confessed to the shooting, but that Walker had been implicated by Sanders. Walker requested to see Sanders, who confirmed this statement. Immediately after talking to Sanders, Walker agreed to give a statement to Weinman.
Walker's version of the events leading up to his confession is substantially different. The district judge took Walker's testimony on the circumstances of his confession in the course of a hearing on whether Walker's failure to testify at his state suppression hearing was due to a reason other than his inexcusable neglect. Although Walker was cross-examined on his testimony relating to the confession, the district judge did not provide a full evidentiary hearing on that question. Walker testified before Judge Sifton that prior to talking to Weinman he had been held in a locker room, with his hands handcuffed behind him, and had been punched and slapped in the face and roughed up by a burly police officer for refusing to talk to Lasky. Walker stated that this treatment had continued intermittently until about half an hour before Weinman had started questioning him. Walker ...