United States of America Ex Rel. Leroy Vanderhorst, Relator-Appellee v. Hon. J. Edwin Lavallee, as Warden of Auburn State Prison, Auburn, New York

417 F.2d 411, 1969 U.S. App. LEXIS 10459

• Court: Court of Appeals for the Second Circuit
• Decided: October 10, 1969
• Docket: 32499_1
• Status: Published

Opinions

ANDERSON, Circuit Judge

(with whom Judges WATERMAN, SMITH, KAUFMAN and FEINBERG concur):

The judgment of the District Court is affirmed on the opinion of Judge Frankel, reported at 285 F.Supp. 283. We add only these few comments.

This case does not raise the issue of whether a defendant who fails to preserve an objection to evidence in a state court may later assert it in a habeas corpus petition, cf. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Vanderhorst’s precise claim, that his confession was involuntary because of an assistant district attorney’s deliberately misleading advice concerning his right to remain silent, was not argued at trial; but it was asserted in the state court on appeal.¹ Judge Frankel relied on the holding of People v. McLucas, 15 N.Y.2d 167, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965), that “no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right,” as authority for disposing of the simple waiver argument to clear the way for application of the deliberate by-pass test of Henry, It is our opinion that he properly did so, since the later New York case of People v. De Renzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97 (1966), modified the McLucas doctrine only in the limited situation where a defendant failed entirely to object to admission of a confession and then made affirmative use, himself, at the trial of the evidence he was disputing on appeal;² and People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968), reaffirmed the basic rule. Because a constitutional issue may be raised for the first time on appeal in New York,³ and since this was done, the petition for habeas corpus was properly before the court below. See Fay v. Noia, supra.

The District Court also found the petition was properly before it because Vanderhorst did not deliberately fail to raise a specific objection to use of his confession at the trial in a calculated attempt to by-pass either the trial judge’s ruling upon it or state appeal procedures. See Henry v. Mississippi, supra; Fay v. Noia, supra; cf. Kaufman v. United States, 394 U.S. 217, 220, n. 3, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). While it is possible to contend after the fact that the petitioner failed to claim he was misled into abandoning his right to remain silent precisely because he intended to testify later that he in fact never confessed at all, Judge Frankel appropriately described this as “imaginative recreation of a hypothetical strategy.” 285 F.Supp. at 244. Vanderhorst’s trial attorney did object to admission of this confession because it was involuntary, thereby acknowledging its existence. He cited as alternate grounds the allegations of (1) beating, (2) failure to advise him of his right to counsel, and (3) failure to warn him that he might remain silent. On appeal he first raised the fourth ground, deliberately misleading advice about his right to remain silent. The record supports the District Court’s conclusion that Vanderhorst’s lawyer, already entwined in conflicting testimony and theories and seeking to object to a highly damaging confession on every ground available, simply overlooked an opportunity to point out the assistant district attorney’s improper interpretation of “voluntary.” Defendant’s attorney did not know of this error at the preliminary hearing because he had not yet seen the transcript of the confession, yet as early as this he objected that the confession was involuntary. As Judge Frankel appropriately notes,

"Unlike defense counsel and the trial judge, the representatives of the State had been in possession of the transcript for many months and had been able to study at leisure its possible infirmities. Respondent’s reference now to ‘strategic’ failures to object should remind us that the first choice of strategy is for the State. It is at least open to question how far that choice should be held to allow the proffering of illicit evidence in the hope that resulting quandaries of defense counsel may ground procedural arguments for ignoring the wrong.” 285 F.Supp. at 244.

Finally, we reiterate that the interrogation of the defendant by the assistant district attorney, which did not meet federal constitutional standards of voluntariness, was far from harmless. The crucial statement improperly elicited was the following:

“Q. And was that the reason that you shot Harold Johnson, to get his money? A. No, that is not the reason. I don’t know what it is.

Q. Did you tell me that earlier when I asked you was that the reason?

A. That had to be the reason.

Q. Is that the reason? A. That is the reason. That is the reason.

Q. Tell be in your own words, was that the reason you shot Harold Johnson was to get his money, is that correct? A. Yes” (Tr. 463-467).

This was the evidence which supported a conviction for murder rather than manslaughter. Before the confession was read into evidence, Frank Sorberá, the brother of defendant’s employer, had testified concerning $48 which Vander-horst had been paid by one of the employer’s clients, to be turned in to the firm:

“Q. What conversation did you have with this defendant? A. Well, Mr. Vanderhorst told me that he couldn’t bring up the $48 because he was sleeping — he had slept in some friend’s house and somehow or other someone rifled his pants and took the $48 out of his pocket. He didn’t tell me who” (Tr. 419).

With knowledge of this conversation which had occurred a week earlier, the employer Louis Sorberá asked the defendant during questioning at the police station whether his friend, the deceased, had taken the $48. Sorberá testified that Vanderhorst, who had already been questioned by detectives at the precinct stationhouse, then said he “believed” this to be the case, and that he had gone to see Johnson on the night of the homicide with “hopes” of obtaining the money (Tr. 429-430). Louis Sorberá admitted on cross-examination, however, that while Vanderhorst had said he thought Johnson “might” have taken the $48, he never stated whether or not Johnson was the friend at whose house he had been sleeping when the money mysteriously disappeared (Tr. 438-439). There was no testimony concerning whether Vanderhorst had gone to see Johnson to inquire about money lost at his house to persons possibly unknown, or whether his “hopes” of retrieving the $48 were of a more specific and malicious nature. Vanderhorst’s statement improperly elicited by the assistant district attorney was then introduced, providing the key element in establishing the motive which supported the murder conviction.

1 . Vanderhorst’s conviction was affirmed by the Appellate Division without opinion, and both leave to appeal to the New York Court of Appeals and a petition for cer-tiorari to the United States Supreme Court were denied. We, therefore, cannot determine whether this claim was ever disposed of on the merits.

2 . There is no factual parallel between the instant case and De Renzzio, where defense counsel raised no objection to the admission of a confession and then read excerpts from it to the jury in his summation in order to cite exculpatory statements allegedly indicating De Renzzio had taken a less significant part in the crime than his companions. Vanderhorst’s lawyer used the improperly-obtained confession to cross-examine the stenographer only after it had been admitted over his objections, and it is difficult to understand how responsible counsel could have done otherwise once the trial court overruled his protests. Comparing this to the strategic affirmative use made of a confession, which met no objection whatsoever at trial in De Renzzio, would allow the MeLueas rule to be swallowed up by its exception, as New York’s Court of Appeals has indicated it will not do. People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968); see United States ex rel. Forella v. Follette, 405 F.2d 680, 681 n. 1 (2 Cir. 1969).

3 . Appellant not only disputes the existence of this New York rule but also argues that it is contrary to our holding that on direct appeal federal courts need not review errors, the grounds for objection to which are not called to the attention of the trial judge, even if such errors involve constitutional rights. United States v. Indiviglio, 352 F.2d 276 (2 Cir. en banc 1965), cert. denied 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966); United States v. Re, 372 F.2d 641 (2 Cir. 1967). The parallel is not an appropriate one, however, since these cases involved attempts to raise separate and distinct issues for the first time on appeal. As discussed below in connection with the deliberate by-pass rule, no such distinct issue was involved here. In the case before us it was urged before the District Court, as it generally had been before the state trial court, that the means employed by the assistant district attorney to extract the incriminating statements exceeded constitutional limits. There was no failure “reasonably to apprise the trial judge of the grounds asserted here.” United States v. Indiviglio, supra 352 F. 2d at 279.

Furthermore, if this case had been tried in a federal district court, this court could exercise its discretion to notice an error such as the one which occurred here notwithstanding a failure to raise sufficient objection below, under Rule 52 (b), F.R.Crim.P., which provides for review of “plain errors or defects affecting substantial rights” which were not mentioned below. United States v. In-diviglio, supra at 280.