Frederic D. Jennings, Petitioner-appellant, v. J. Leland Casscles, Superintendent of Great Meadowcorrectional Facility, Comstock, New York,respondent-appellee, 568 F.2d 229 (2d Cir. 1977)

This is an appeal from judgment of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying a petition for writ of habeas corpus attacking a New York State Court murder conviction based on a confession. We find no error and affirm the judgment.

About midnight, on June 4, 1970, 14-year-old Mary Carman disappeared while walking home from a concert at Wyandanch Junior High School in Wyandanch, New York. On August 21, 1970, the remains of a body, identified by dental records, jewelry and clothing as Mary Carman, were found in a wooded area at South 26th Street and Levey Boulevard, not far from the Carman home, by Schyler Carman, Mary's father. On the same day Detective Edward Halverson of the Homicide Squad of the Suffolk County Police Department was assigned to investigate Mary Carman's death. Between August 21 and 25, 1970 Halverson, a policeman for 91/2 years and a detective for 51/2 years, interviewed 30-35 people, including suspects. Halverson learned that clothes had been removed from the body and was informed that a substance in part of the clothing was in all likelihood spermatozoa. This information combined with the fact that the body was found in the woods suggested to Halverson that Mary Carman may have been raped. Halverson ascertained that Frederic Jennings, age twenty-two, of 72 South 25th Street, was being held in custody in Suffolk County Jail on two forcible rape charges. Since Jennings "fell in line . . . as one of the possible suspects" Halverson spoke with his superior, Captain Joseph Bierni, and then, on August 25, 1970 telephoned the jail and requested to interview Jennings. He was advised it was necessary for Jennings to sign a "permission slip," or form showing his willingness to speak with the detectives, and that he would be called if Jennings signed the slip. A short time later Halverson received a call from the jail and was informed that Jennings would see him the following day.

At 10:40 a.m. on August 26, 1970 Halverson, accompanied by Detective Richard Dean, met Jennings in one of several rooms near the main lobby of the jail. This room had a door and large windows, contained a table and three chairs. There was nothing to separate the officers and Jennings. Halverson and Dean indicated they were from the Homicide Squad and there to investigate the death of Mary Carman who they believed had been murdered and possibly raped not far from Jennings' home. The detectives also indicated, apparently at this time, that they felt there were "certain similarities" between the circumstances surrounding Mary Carman's death and allegations in the two rape charges filed against Jennings and that they would like to talk to him about them. Halverson talked at length with Jennings about his sexual problems. During this discussion Halverson inquired if Jennings had received treatment. Halverson also asserted that he felt Jennings was "responsible for the allegations that were made against him." The morning interview lasted until 11:30 a.m. at which time a break was taken so that Jennings could go to lunch.

About 1:05 p.m. Halverson and Dean again met with Jennings. They began to inquire about his family when Jennings asked them why it had taken them so long to find him. Asked what he meant, Jennings stated he had seen the body and then accurately described its location. Asked how he knew about the body, Jennings said a friend from the city had killed her and had taken him to see the body a week after the murder. Jennings then demonstrated how his friend had strangled her with a mugger-type hold. Asked for details, Jennings stated that on June 4, the evening of the concert, his friend had come to Jennings' house, that about 9:30 p.m. Jennings left his house to visit his girlfriend, leaving his friend behind, that his friend met Jennings in front of his girlfriend's house about 11:30 p.m., and that Jennings drove his friend back to the city because he did not know how to drive. Jennings would not reveal his friend's name and gave only a general description of him. The afternoon interview lasted until 4:30 p.m.

After leaving the jail, Halverson interviewed Jennings' mother, who informed him that no one in the family knew of a friend who had visited Jennings from the city, and Jennings' girlfriend, who said that she knew nothing of his friend from the city and that she had not been with Jennings on the evening of June 4, 1970. On the basis of the interviews and Jennings' precise description of the body's location, Halverson decided that Jennings "had not told me the truth in regard to his friend and I felt he was a very good suspect in the murder of Mary Eloise Carman."

The next day, August 27, 1970, Halverson and Dean returned to the jail. Jennings signed a second permission slip and met with the detectives about 10:40 a.m. in another of the rooms near the main lobby. Halverson indicated that he would have to advise Jennings of his constitutional rights at this point. Jennings replied that he knew all about his rights, that he had learned them "at the First Precinct." Jennings was then advised fully of his constitutional rights. Asked if he wished to waive these rights, Jennings responded that he did, that he didn't do anything to the girl, that his friend did and that he would tell them about it. Asked if he knew Mary Carman, Jennings stated he knew about the body in the woods a couple of days after the concert. When told by Halverson they thought it would have been natural to ask his friend about how the girl died and the circumstances surrounding her death, Jennings replied he knew everything that happened. Asked to tell them all he knew, Jennings related that his friend saw Mary Carman on Jamaica Avenue walking toward 21st Street and again on Levey Boulevard going toward 26th Street, grabbed her around the neck in a mugger's hold, dragged her into the woods, punched her in the stomach to bring her to the ground, and after finding out her rings were cheap, "he did his thing." Afterward, Jennings continued, his friend met Jennings and then drove back to the city. Asked why his friend might have killed the girl, Jennings said the only thing might be that she recognized him. Halverson pointed out inconsistencies in Jennings' accounts and told him that his girlfriend denied that he had been at her house the evening of the concert. Jennings became agitated and said that if he got his girlfriend by the neck she would say he had been there. Halverson told Jennings to calm down. He then told him that he did not believe he had this friend and that Jennings himself had done the things that he had recounted. Jennings then admitted that he had done the things he had ascribed to his friend and acknowledged that he had intercourse with Mary Carman. The interview ended about noon.

No notes were taken at either interview. Each day's conversation was summarized by Halverson on police department forms. No signed statement resulted from the interrogation. A pretrial suppression hearing, mandated by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), was held on the admissibility of Jennings' statements to Halverson and Dean. Jennings declined the opportunity to testify. Jennings' comments on August 26, 1970 were ruled inadmissible because he was not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). His statements of August 27, 1970 were ruled admissible because Jennings had been properly advised and had, before he spoke, knowingly waived his rights to counsel and to remain silent. The trial judge declined to suppress Jennings' comments of August 27, 1970 simply because those of August 26, 1970 had been ruled inadmissible. Jennings' counsel excepted.

Jennings was tried for murder before a jury in the County Court, Suffolk County. Based upon his confession and other statements on August 27, 1970 and evidence concerning the manner and circumstances of Mary Carman's death, Jennings was convicted. On August 5, 1971 Jennings was sentenced to 25 years to life in prison. The sentence was to run concurrently with two prior 15-year indeterminate sentences for forcible rape.

The Appellate Division, Second Department affirmed. 40 A.D.2d 357, 340 N.Y.S.2d 25 (1973). The court noted not only that "(n)othing in this record remotely suggests that any of the statements made on either occasion were made involuntarily" but also that "(t)here is no showing that the earlier admission so dominated the defendant's mind on the later occasion that he was compelled to speak." Id. at 362-3, 340 N.Y.S.2d at 30. The New York Court of Appeals affirmed on the opinion of the Appellate Division. 33 N.Y.2d 880, 352 N.Y.S.2d 444, 307 N.E.2d 561 (1973).

Jennings then filed a pro se petition for a writ of habeas corpus. This petition was denied on August 14, 1974. With benefit of counsel, Jennings filed a second petition, alleging his confession had been involuntary and was "fruit of the poisonous tree." On November 8, 1976 the district court denied the second petition. 424 F. Supp. 280 (E.D.N.Y. 1976). The court noted that 28 U.S.C. § 2254(d) mandates that federal courts give deference to state court determinations on voluntariness and found that even if it were proper in the instant case to review the state court's finding as to voluntariness the finding would not be disturbed. As to Jennings' second claim, the district court declined to apply the "fruit of the poisonous tree" test and stated that even if it were applicable that Jennings' voluntary repetition of his first day statements "constituted an intervening act of free will sufficient to purge the primary taint so as to render the confession admissible." Id. at 285. Final judgment was entered on November 9, 1976.

A certificate of probable cause was issued on March 31, 1977 and Jennings filed a notice of appeal on May 23, 1977.

Jennings seeks federal habeas corpus relief on the ground that his fifth amendment rights have been violated.¹  The fifth amendment provides that "(n)o person . . . shall be compelled in any criminal case to be a witness against himself." If Jennings' confession on August 27, 1970 was voluntary it was properly admissible as evidence. If it was forced or compelled, it was inadmissible.

The test for voluntariness "is whether an examination of all the circumstances discloses that the conduct of 'law enforcement officials was such as to overbear (the defendant's) will (to) resist and bring about confessions not freely self-determined. . . . ' Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760 (1961). . . . " United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir. 1974), cert. denied, 419 U.S. 1032, 95 S. Ct. 514, 42 L. Ed. 2d 307 (1974), quoting United States v. Ferrara, 377 F.2d 16, 17 (2d Cir. 1967), cert. denied, 389 U.S. 908, 88 S. Ct. 225, 19 L. Ed. 2d 225 (1967). Cf. Tanner v. Vincent, 541 F.2d 932, 936 (2d Cir. 1976). At the suppression hearing the trial judge found that Jennings "voluntarily and from his free will spoke to the police concerning this case and that at no time was he struck, threatened, coerced or promised anything." In affirming Jennings' conviction, the Appellate Division, as noted above, found that "(n)othing in this record remotely suggests that any of the statements made on either occasion were made involuntarily." The Court of Appeals affirmed on the opinion of the Appellate Division. The District Court concluded that

(i)n this case, there is no evidence of any physical abuse of the defendant. Nor is there evidence of the type of mental or physical coercion which had rendered confessions involuntary in other cases (citations omitted). Indeed, there was far less pressure on the defendant to speak in this case than in others in which the confessions were held to be voluntary (citations omitted).

On appeal Jennings has not seriously pressed the claim that his confession was involuntary.

Jennings' second claim on which he primarily relies, is that his confession should be ruled inadmissible because it was "tainted" or "fruit of the poisonous tree," because he did not receive Miranda warnings on August 26. In affirming Jennings' conviction, the Appellate Division, as noted above, concluded "(t)here is no showing that the earlier admission so dominated the defendant's mind on the later occasion that he was compelled to speak." We cannot fault this conclusion in the light of Jennings' experience, his statement that he was familiar with his rights from warnings given "at the First Precinct" presumably following his recent arrest on rape charges,²  and the lack of any indication of physical or other threats or coercion.³  While it is true that Jennings committed himself to his story before receiving the proper warnings, we do not regard this as dispositive.⁴ 

On appeal, Jennings revives the claim, made at the state suppression hearing, that he did not knowingly and intelligently waive his right to remain silent and his right to counsel. This claim was not asserted in the District Court and first appears here only in petitioner's reply brief. Since this " point was not raised in the petition for the writ of habeas corpus, it is not properly before us," United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir.), cert. denied sub nom. Springle v. Zelker,401 U.S. 980, 91 S. Ct. 1214, 28 L. Ed. 2d 331 (1970). See also Ross v. LaVallee, 341 F.2d 823, 824 n. 1 (2d Cir.), cert. denied sub nom. Ross v. New York, 382 U.S. 867, 86 S. Ct. 137, 15 L. Ed. 2d 105 (1965). Under the circumstances, we decline to rule on an eleventh-hour claim.⁵ 

We find no error in the determination that Jennings' confession was voluntary and admissible, and Jennings' claim that he did not knowingly and intelligently waive his rights is not properly before us.

We find no reason to disturb the District Court's judgment and we affirm.