Opinion
00 Civ. 6680 (DLC)(AJP)
May 17, 2001
REPORT AND RECOMMENDATION
To the Honorable Denise L. Cote, United States District Judge:
Petitioner Tony Legree seeks a writ of habeas corpus from his 1995 conviction after a jury trial in Supreme Court, New York County, of murder and robbery, for which he was sentenced to twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Legree's petition, supported by a brief filed on his behalf by the Legal Aid Society, alleges that Legree was denied due process when he was questioned by police without first having been advised of his Miranda rights and his subsequent, post-Miranda statements were admitted at trial. (Pet. ¶ 12; see generally Dkt. No. 11: Legree Br.)
For the reasons discussed below, the petition should be denied.
FACTS
On January 11, 1991, at approximately 2:00 p.m., at 81st Street and Second Avenue in Manhattan, Jason Janovcsik was robbed at gunpoint, shot and killed. (See Dkt. No. 11:12/4/00 Legree Br. at 2-3; Dkt. No. 13: State Br. at 1-2.) The police had no leads until one of the robbery participants, Deas Bynum, was arrested for a series of unrelated robberies. (State Br. at 2.) Bynum informed police that Tony Legree and Larry "Duke" Simmons were involved in Janovcsik's robbery-murder. (State Br. at 2.) The Nineteenth Precinct detectives investigating the murder lodged a "want card" for Legree so that they would be notified if he was arrested or had other contact with the police. (Legree Br. at 3-4; 3/13/95 Suppression Hearing Transcript ["S."] 10, 30.)
The Suppression Hearing Evidence: Police Questioning of Legree
On May 1, 1994, Legree was arrested for an unrelated robbery. (Pet. ¶ 12; Legree Br. at 4.) On May 2, 1994, at around 6:00 p.m., Detective Thomas Ryan of the Nineteenth Precinct was informed that Legree was in the courthouse holding cells awaiting arraignment; Detective Ryan went to the courthouse, handcuffed Legree, and drove him to the Nineteenth Precinct for questioning. (Ryan: S. 8-13, 16-19, 21.) Detective Ryan did not give Legree his Miranda rights. (Ryan: S. 19-20.) Detective Ryan did not discuss the murder of Jason Janovcsik while en route to the precinct, nor did he inform Legree why he was being taken from the courthouse. (Ryan: S. 13-15.) Detective Ryan asked Legree what his name was (Legree had been arrested under an alias); Legree initially replied "Tyrone Johnson" (the name under which he was arrested) but then after "four or five minutes in the ride he then stated all right I'm Tony Legree." (Ryan: S. 13, 23.) Legree asked where they were going and Detective Ryan said to the Nineteenth Precinct where some detectives wanted to talk to Legree. (Ryan: S. 13.) Legree volunteered that "[h]e didn't have any bodies on him. He said he hadn't been north of Thirty-Fourth Street since approximately 1984." (Ryan: S. 14; see also Ryan: S. 24.) Legree did not make any statement to Detective Ryan about the Janovcsik robbery-homicide, nor did he request a lawyer or indicate any unwillingness to speak with the detectives. (Ryan: S. 14-15.)
When they arrived at the Nineteenth Precinct, Detective Ryan placed Legree, still in handcuffs, in an interview room and had no further part in Legree's questioning. (Ryan: S. 16, 25-26.) Detectives Michael Charles and Greg Yovane, who were working on the 1991 homicide investigation, came into the interview room at around 7:00 p.m. (Yovane: S. 29, 31; see also Legree Br. at 6.)
Initially, Legree asked the detectives why he was brought to the precinct. (Yovane: S. 32.) The detectives responded by telling Legree about the 1991 robbery-homicide of Janovcsik and, before advising Legree of his Miranda rights, attempted to ascertain if Legree knew anything about the crime. (Yovane: S. 32, 50.) The detectives showed Legree crime scene pictures and told him the names and showed him pictures of the other two robbery participants; Legree initially denied recognizing them. (Yovane: S. 32-33.) The detectives considered this initial questioning to be an "investigative interview." (Yovane: S. 43-44.) According to the detectives, Legree "basically went from I don't remember to maybe or possibly and he would, certain things he would say well I remember this location . . . or say something about oh yeah maybe I do know that guy now. Yeah, that's right. I do know him. It just went like that. It was up and down kind of puzzley." (Yovane: S. 33; see also Yovane: S. 50, 54-55.)
Detective Yovane explained:
Q. The initial [pre-Miranda] . . . session of the interview that you had with Mr. Legree, would you describe that as your questioning him or how would you characterize that first, that first session of the conversation?
A. Well we didn't know we, what we had initially. We didn't know what kind of information we would come up with. We were acting on information we received from the detective in Brooklyn so we wanted to speak to him and we took it as an ordinary informative interview, like an investigative interview as any other investigative interview would be.
. . . .
When] he first got there he was concerned why he was there. That was his main concern. So we explained as best as we could by telling him about the incident in 1991.
(Yovane: S. 43-44.)
In order to get a more coherent statement, the detectives asked Legree if he was willing to make a statement and when he said yes, they advised him of his Miranda rights:
Q. You are indicating I believe that he went from a complete lack of knowledge to perhaps acknowledging some pieces of what you were talking to him about?
A. [Det. Yovane]. That's correct.
Q. Well please go on. How did this interview progress?
A. From there, we, we realized we had just a lot of pieces and we wanted to put something together that made sense from beginning to end. So Detective Charles asked him if he would like to make a statement and he agreed. At that time I got a card from the office with the Miranda warnings and I advised him of his rights and Detective Charles took a statement from Mr. Legree.
. . . .
Q. At the end of each of the descriptions of the defendant's rights, did you ask him if he understood each of those individual rights?
A. Yes.
. . . .
. . . . He also mentioned to me that I didn't have to read him his rights. I remember saying to him it doesn't make a difference [they] have to be read anyway.
. . . .
Q. During your entire contact with Mr. Legree at the precinct, did he make any comments or ask any questions about attorneys?
A. No.
Q. Did he at any time in anyway express a desire not to speak with you or not to speak with any other police?
A. No
Q. Did he at any time in anyway express a desire not to speak with you or not to speak with any other police?
After Detective Yovane advised Legree of his Miranda rights, Legree dictated a statement, which Detective Charles wrote down sentence by sentence and which Legree and the detectives signed. (Yovane: S. 38-39, 43, 56-57.)
Q. How did the interview proceed from that moment [after the conclusion of the Miranda warnings]?
A. It was fine. Detective Charles took a statement.
Q. What technique was used here? [Did] Mr. Legree write out his own statement, [or] was it recorded in some other way?
A. Detective Charles wrote down the statement as Mr. Legree dictated it. (Yovane: S. 38.)
A. No.
(Yovane: S. 33-36, 43, emphasis added.)
Legree's signed statement, which was admitted into evidence at the hearing and placed into the record at trial, reads as follows:
Present at the Nineteen Detective Squad, and I, Antonio Legree state that freely and without intimidation, give this statement to Detective Michael Charles and Detective Gregory Yovane of the Nineteenth Detective Squad, that New Years' Day [in 1991] had passed . . . . I got into the blue dark colored Jeep Cherokee. Duke drove to Manhattan. In Manhattan Duke stopped and Duke and Deas went out and went across the street to a bank and they, Deas and Duke were in the bank for fifteen to twenty minutes. They came out and got in the truck and drove. Duke said to Deas, that's the brick.
Detective Charles asked Tony Legree what's the brick. He said "money."
Deas was known as Blind. That was Larry Simmons. The Duke's favorite expression. Then they drove off and they stopped and Duke and Deas got out, and they got out and walked behind me. I sat in the truck on a side street. . . . Deas and Duke were not gone long. I heard a gunshot and Deas ran and jumped in the truck. In his hand was a gun, a .38 revolver, and money, U.S. cash. Deas said, get me out of here, get the fuck out of here. Duke never came back to the truck. I was sitting on the passenger side. We sat, we sat, Deas and I for a minute, for Duke to get the truck out of there. Duke never came, so I had to drive the truck out of there. I got in the driver's seat. I went to the corner and made a right, then drove down and made another right, right turn. I know I made two turns and I was on the lane heading right, but I had to get in the left lane. I drove across the ramp on the F.D.R. I headed towards Brooklyn. . . . Was at 988 Green Avenue, Apartment 3-C. . . . Get in the apartment . . . . I know . . . Deas and Duke had no money before we went to Manhattan and after Manhattan they had money. Me and Duke are not cool to talk about what happened.
(Legree Br. at 9-10, quoting S. Ex. 2.) The detectives finished taking this statement from Legree at around 8:00 p.m. (Yovane: S. 45; see also Yovane: S. 53.)
About two hours after the detectives took Legree's statement, they went to the Thirty-Fourth Precinct so that Legree could give a videotaped statement to an Assistant District Attorney. (Yovane: S. 44-46, 58.) There was no more "conversation or . . . interviewing of Mr. Legree before the videotape began." (Yovane: S. 46.) Defense counsel stipulated at the suppression hearing: that Legree was advised of his Miranda rights on the videotape, the videotaped statement was made at around midnight, and it lasted about 45 minutes. (S. 47-48.)
The Suppression Hearing: Arguments of Counsel and the Court's Ruling
At the continuation of the suppression hearing on March 14, 1995 (S. 67), defense counsel argued that Legree's post-Miranda signed and videotaped statements should be suppressed because Legree was not advised of his Miranda rights before the initial questioning:
Prior to giving the defendant his Miranda warnings, [Detective Yovane] questioned the defendant.
The defendant made certain statements and admissions. Number one that he knew Simmons and Bynum and number two, that he was with them on the day that the robbery-homicide went down.
That he was in the jeep and other material factors with regard to the incident.
After that, immediately following the unwarned statement made by the defendant, Miranda warnings were given.
Now [People v.] Chap[ple,] [ 38 N.Y.2d 112, 378 N.Y.S.2d 682, 685-86 (1975),] stands for the proposition . . . that giving Miranda warnings after statements are made is too late.
As a matter of fact, Judge Fuchsberg states Miranda warnings under the combined holdings in Miranda and Westover must precede the subjecting of a defendant to questioning.
Later its too late. And that is exactly what you had here. Now this isn't the type of situation, . . . cat out of the bag type of thing where he makes a statement in the morning and then he makes another statement later in the day.
This was the same statement. Same chain of events, exact facts that are set forth in Chap[ple].
With regard to the videotaped statement, that also followed hard upon his statement, his written statement to Yovane.
. . . .
[Legree's pre-Miranda statement] is an inculpatory statement made by the defendant, extremely inculpatory because they [the detectives] knew that Deas Bynum and Simmons were involved in this.
The fact that [Legree] knew Deas Bynum, he was riding with Deas Bynum, he knew something about the robbery, that he was probably present at the time, all pointed to the defendant as being the suspect inculpating him and then they give him the Miranda warnings right after that.
(S. 69-71, 77.)
The prosecution argued that both post-Miranda written and videotaped statements should be admitted:
The detectives had full reasonable cause to pick the defendant up from Court downtown and bring him back to the 19th precinct for questioning.
The defendant was brought to the 19th precinct and subjected to some investigative questions, questioning.
In fact at the 19th precinct [Legree] was asking most of the questions of the detectives and they were supplying information to him to see whether his memory would revive about this incident.
When the moment came that Mr. Legree began indicating that he had information which could inculpate him in the case, detectives then took the proper next step.
They properly advised him of his Miranda warnings and the defendant waives his Miranda rights without question or comment.
The interview was then . . . properly taken.
(S. 73-74.)
The Court held that the post-Miranda statements were admissible:
[In] [t]his case in good faith [the] police officers were in a position to take the defendant into custody.
He had been arrested unquestionably and he was in police custody when they had information regarding the involvement by the defendant with Bynum and Simmons.
And what they had an obligation to do since both Bynum and Simmons were potential co-defendants in a homicide case, was to ascertain from the defendant whether he wished to exculpate himself and to get statements before they gave Miranda warnings.
There is no magical moment at the juncture at which . . . the investigating detective believed it was appropriate to take a statement.
The Miranda warnings were given. I find they were understood.
. . . .
Motion to suppress the statement taken by the detectives at the thirty-fourth precinct, [and] the 19th precinct is denied.
(S. 81-82, 88). Legree's signed and videotaped statements were admitted at trial through Detective Yovane. (See Legree Br. at 9, 15.)
Verdict and Sentence
On November 9, 1995, Legree was convicted by a jury in Supreme Court, New York County, of second degree murder and first and second degree robbery, and sentenced, as a second felony offender, to concurrent terms the longest of which was twenty-five years to life imprisonment. See People v. Legree, 258 A.D.2d 420, 420, 685 N.Y.S.2d 720, 721 (1st Dep't 1999).
Direct State Appeal
Legree appealed, and on February 25, 1999, the First Department unanimously affirmed Legree's conviction, holding, in full: "The challenged written and videotaped statements, which were preceded by Miranda warnings, were admissible since they were free of any taint from defendant's earlier uncounseled statements." People v. Legree, 258 A.D.2d 420, 420, 685 N.Y.S.2d 720, 721 (1st Dep't 1999).
On June 29, 1999, the New York Court of Appeals denied leave to appeal. People v. Legree, 93 N.Y.2d 973, 695 N.Y.S.2d 59 (1999).
Legree's Federal Habeas Corpus Petition
Legree's Federal Habeas Corpus Petition Legree's timely-filed federal habeas petition is dated August 10, 2000 and was received by the Court's Pro Se office on August 28, 2000. (Dkt. No. 1: Pet. at 1, 6.) Legree alleges that he was denied due process when he was questioned by the police without first having been advised of his Miranda rights and his subsequent, post-Miranda statements were admitted at trial. (Pet. ¶ 12.) On October 25, 2000, Mitchell J. Briskey of the Legal Aid Society filed a notice of appearance on Legree's behalf (Dkt. No. 8), followed on December 7, 2000 by a brief in support of Legree's petition. (Dkt. No. 11: Legree Br.)
ANALYSIS
ADMISSION OF LEGREE'S POST-OF LEGREE'S POST-MIRANDA STATEMENTS DID NOT VIOLATE DUE
A. Miranda v. Arizona: Background
Prior to Miranda, the Supreme Court utilized "due process jurisprudence . . . to exclude confessions that were obtained involuntarily." Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 2331 (2000). Because of the "coercion inherent in custodial interrogation," the Supreme Court in its well-known decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), "laid down 'concrete constitutional guidelines for law enforcement agencies and courts to follow.'" Dickerson v. United States, 530 U.S. at 435, 120 S.Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 442, 86 S.Ct. at 1611). As the Supreme Court summarized in reaffirming Miranda last year:
Those guidelines established that the admissibility in evidence of dany statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."
Dickerson v. United States, 530 U.S. at 435, 120 S.Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630). The "Miranda warnings" are familiar to everyone from watching television or movies: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. at 443, 120 S.Ct. at 2336.
It goes without saying that statements obtained in violation of Miranda generally must be suppressed. See, e.g., Dickerson v. United States, 530 U.S. at 443-44, 120 S.Ct. at 2336 ("our subsequent cases have . . . reaffirm[ed] the [Miranda] decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief"); Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 1297 (1985) ("When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief.")
See also, e.g., United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998); United States v. Morales, 788 F.2d 883, 885 (2d Cir. 1986) ("It is axiomatic that a statement obtained in violation of Miranda is ordinarily inadmissible at trial."); Powell v. Greiner, 98 Civ. 7899, 2000 WL 280041 at *2-3 (S.D.N Y Mar. 14, 2000) (Cote, D.J.); United States v. Lopez, 63 F. Supp.2d 411, 413 (S.D.N.Y. Sept. 7, 1999) (Cote, D.J.).
B. The Court Assumes that the Pre-Warning Questioning of Legree Was a Custodial Interrogation
Miranda warnings are not required in all circumstances when an individual is being questioned by police, "but rather where a suspect in custody is subjected to interrogation. 'Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689 (1980). The parties dispute whether Legree was being interrogated by the detectives before he was advised of his Miranda rights. (Compare State Br. at 15-18 (arguing that the questions were "investigatory") with Legree Br. at 25-26.) The Court need not decide this issue. Assuming arguendo that the initial questioning of Legree was custodial interrogation, admission at trial of Legree's post-Miranda statements nevertheless did not constitute a due process violation for the reasons discussed in Point C below.
C. Legree's Post-Miranda Statements Were Properly Admitted at Trial
Before he was advised of his Miranda rights, "defendant made certain statements and admissions. Number one that he knew Simmons and Bynum and number two, that he was with them on the day the robbery-homicide went down, [and] [t]hat he was on the jeep and other material factors with regard to the incident. After that, immediately following the unwarned statement made by the defendant, Miranda warnings were given" (S. 70), and Legree signed a written statement and gave a videotaped confession of his involvement in the crime. There is no dispute that Legree's initial partially-inculpatory statements were obtained without Miranda warnings; but those statements were not admitted at trial. The issue is whether Legree's pre-Miranda statements rendered his post-Miranda statements inadmissible. The Court agrees with the State courts that they did not.
The Court has clear guidance from the Supreme Court and the Second Circuit on this issue. The Supreme Court has made clear that even if a petitioner's initial statements are considered "incriminating and obtained in violation of the Miranda rule, that does not render his later, fully warned confessions inadmissible." Nova v. Bartlett, 211 F.3d 705, 708 (2d Cir. 2000) (citing Oregon v. Elstad, 470 U.S. 298, 311-14, 105 S.Ct. 1285, 1294-96 (1985). "[T]he Supreme Court expressly rejected the 'cat out of the bag' theory under which, once an incriminating statement has been made, no subsequent confession can be truly voluntary." Nova v. Bartlett, 211 F.3d at 708 (citing Oregon v. Elstad, 470 U.S. at 318, 105 S.Ct. at 1297-98).
In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1988), the Supreme Court determined that where a defendant makes a pre-Mirandized statement and then a post-Miranda statement, the latter is admissible if "knowingly and voluntarily made":
It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
. . . .
We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.
. . . .
Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth amendment proscription against use of compelled testimony are fully satisfied . . . by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold here today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.
Oregon v. Elstad, 470 U.S. at 309, 314, 318, 105 S.Ct. at 1293, 1296, 1297-98 (emphasis added); see also, e.g., Nova v. Bartlett, 211 F.3d at 708-09; Casellas v. McGinnis, No. 99-2127, 199 F.3d 1321 (table), 1999 WL 980948 at *3 (2d Cir. Oct. 22, 1999) ("[I]t is not enough to say that the first confession was obtained in violation of Miranda[,] [f]or the later confessions would still be admissible under Elstad unless the circumstances surrounding this first statement entailed coercion so great that there would not have been a voluntary waiver of rights as to the subsequent confessions."), cert. denied, 529 U.S. 1091, 120 S.Ct. 1729 (2000); United States v. Orellana-Osorio, No. 95-1541, 101 F.3d 1393 (table), 1996 WL 460797 at *2 (2d Cir. Aug. 14, 1996) ("When an unwarned admission has been made without coercion, the admissibility of additional statements, made after the subsequent administration of Miranda warnings, turns on whether these latter statements were also freely given."), cert. denied, 519 U.S. 1069, 117 S.Ct. 713 (1997); Vasquez v. Senkowski, 54 F. Supp.2d 208, 213-14 (S.D.N Y 1999); United States v. Ford, 96 CR. 672, 1997 WL 538813 at *10 (S.D.N.Y. Aug. 29, 1997) ("[T]he fact that the Defendants were subjected to some questioning prior to the reading of their Miranda rights does not render inadmissible the statements made by the Defendants after the reading of their Miranda rights.").
The issue, therefore, is whether the circumstances surrounding Legree's initial, pre-Miranda statements "were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his 'second' [and third] warned confession." Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998); see also, e.g., Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522 (1986) ("coercive police activity is a necessary predicate to the finding that a [post-Miranda] confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment"); Casellas v. McGinnis, 1999 WL 980948 at *3; Heron v. People of the State of New York, 98 Civ. 7941, 1999 WL 1125059 at *8 (S.D.N.Y. Dec. 8, 1999); Vasquez v. Senkowski, 54 F. Supp.2d at 213-14.
The fact that Legree was in custody is not sufficient to prove coercion. "Serious pressures inherent in custodial interrogation will inevitably be present in any case under [Oregon v.] Elstad — which, after all, addresses situations in which a defendant was in custody and entitled to Miranda warnings at some point before those warnings were given. Thus, we cannot rely solely on the Miranda presumption that custodial interrogation is coercive in determining whether [petitioner's] second confession must be suppressed." Tankleff v. Senkowski, 135 F.3d at 244. The Court must look at the "totality of the circumstances" to determine if the circumstances surrounding Legree's initial statements were so coercive as to require suppression of his post-Miranda statements. See, e.g., Casellas v. McGinnis, 1999 WL 980948 at *2 (defendants statements "can be suppressed on Miranda grounds only if the circumstances surrounding the first confession were sufficiently coercive so that the defendant could not have been said to have knowingly and intelligently waived his rights with respect to these subsequent admissions"); Tankleff v. Senkowski, 135 F.3d at 244-45; (citing Campaneria v. Reid, 891 F.2d 1014, 1019-20 (2d Cir. 1989), cert. denied, 499 U.S. 949, 111 S.Ct. 1419 (1991)); United States v. Orellana-Osorio, 1996 WL 460979 at *2 ("When an unwarned admission has been made without coercion, the admissibility of additional statements, made after the subsequent administration of Miranda warnings, turns on whether these latter statements were also freely given."); United States v. Valencia, 826 F.2d 169, 177 (2d Cir. 1987); Heron v. People, 1999 WL 1125059 at *8 ("In determining voluntariness, this Court must consider whether the circumstances surrounding petitioner's 'first' unwarned statements were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his 'second' warned statement. . . . [T]his Court must look to the totality of the circumstances."); Vasquez v. Senkowski, 54 F. Supp.2d at 213-14; United States v. Ford, 1997 WL 538813 at *11.
The Second Circuit has emphasized the "fact-specific nature" of the "totality of the circumstances" determination. Tankleff v. Senkowski, 135 F.3d at 245; see also, e.g., United States v. Gilmore, No. 99-1084, 205 F.3d 1325 (table), 1999 WL 1253987 at *1 (2d Cir. Dec. 15, 1999) ("We have previously stressed the 'fact-specific nature' of these sorts of determinations."). The Court must "look to Miranda's twin rationales — trustworthiness and deterrence — to see whether suppression of the second statement would serve the general goal of deterring unlawful police conduct and the Fifth Amendment goal of assuring the receipt of trustworthy evidence." Tankleff v. Senkowski, 135 F.3d at 245 (internal quotations omitted). As the court held in Vasquez, "[i]n applying the totality of the circumstances test, the pertinent factors which merit consideration are (1) the characteristics of the accused, (2) the conditions of [the] interrogation, and (3) the conduct of [the] law enforcement officials. In connection with the third factor, whether a suspect has been advised of his rights under Miranda is an important consideration in determining whether a confession is voluntary." Vasquez v. Senkowski, 54 F. Supp.2d at 215 (citations internal quotations omitted); see also, e.g., United States v. Anderson, 929 F.2d 96,99-100 (2d Cir. 1991); Green v. Scully, 850 F.2d 894, 901-02 (2d Cir.) (citing cases), cert. denied, 488 U.S. 945, 109 S.Ct. 374 (1988); Heron v. People, 1999 WL 1125059 at *8; United States v. Zerbo, 98 CR. 1344, 1999 WL 804129 at *8 (S.D.N.Y. Oct. 8, 1999); United States v. Ford, 1997 WL 538813 at *10-11.
The Second Circuit has upheld the admission of post-Miranda confessions obtained after inculpatory pre-Miranda statements in cases which present more compelling facts for petitioner. See, e.g., Nova v. Bartlett, 211 F.3d at 707-10 (petitioner "gave two extensive confessions after voluntarily waiving his Miranda rights, and those confessions were admissible at trial," even though, before receiving Miranda warnings, "police employed several tactics to induce [petitioner] to make statements implicating himself in the crime" and did not give petitioner "an opportunity to contact a lawyer, friend or family member."); cf. Casellas v. McGinnis, 1999 WL 980948 at *1-3 (post-Miranda statements admitted even though pre-Miranda statements were obtained after police grabbed the arm of extremely religious defendant and forced him to swear on a cross which the police untruthfully represented had been blessed by the Pope); Tankleff v. Senkowski, 135 F.2d at 240-41, 244-45 (upholding the admission of petitioner's second counseled statement where the petitioner's first statements occurred before he was advised of his Miranda rights but after the police interrogated him, and told him untruthfully, that his victim regained consciousness and accused him of the crime).
The record reveals that the circumstances surrounding petitioner's piecemeal, pre-Mirandized statements to Detectives Yovane and Charles were not so coercive as to render petitioner's subsequent post-Miranda statements involuntary. "The record provides no indication that the initial interrogation of petitioner involved physical or psychological coercion." Heron v. People, 1999 WL 1125059 at *8; see also, e.g., Vasquez v. Senkowski, 54 F. Supp.2d at 215. To the contrary, there is no evidence that the detectives were hostile or abusive or that Legree asked for the interrogation to stop or for an attorney, and all evidence indicates that Legree was talking voluntarily to the officers; thus, the police conduct was not coercive. See, e.g., United States v. Gilmore, 1999 WL 1253987 at *1 (despite initial unwarned statement, subsequent statement was knowing and voluntary where "questioning proceeded without coercion, threats, [or] any show of force"); Vasquez v. Senkowski, 54 F. Supp. 2 d at 216 (police conduct "not coercive" where police were not abusive toward petitioner and merely reiterated what petitioner said before he was advised of his rights). The pre-Miranda questioning was short — approximately 25 minutes in the car and another hour at the precinct. (See pages 3, 7 above.) See, e.g., United States v. Ford, 1997 WL 538813 at *10-11 n. 9 (post-Miranda statements were admitted where there was "no indication that the statements made by the Defendants prior to the reading of their Miranda rights were in fact coerced or involuntary . . . [since, among other things] "[t]he pre-Miranda questioning lasted a relatively short period of time") The detectives did not use dishonesty or misrepresentation to elicit statements from Legree. Compare, e.g., United States v. Anderson, 929 F.2d at 99-103 (post-Miranda confession suppressed because "the agent told defendant that if he asked for a lawyer it would permanently preclude him from cooperating with the police."); United States v. Zerbo, 1999 WL 804129 at *2-14 (agents isolated low intelligence, mentally ill defendant from his family); with, e.g., United States v. Ford, 1997 WL 538813 at *10 ("No psychologically coercive tactics were used . . . . "). Here, as in Vasquez, "in view of the totality of the circumstances, the detectives' conduct was entirely appropriate, and, indeed, there is nothing in the record to support a finding that the detectives' conduct prevented petitioner from freely and intelligently waiving his rights and agreeing to speak to the detectives" upon being given Miranda warnings. Vasquez v. Senkowski, 54 F. Supp.2d at 216; see also, e.g., Nova v. Bartlett, 211 F.3d at 709 (There has been no "evidence presented to indicate that the questioning of [petitioner] was coercive or that his statements were otherwise involuntary. His later, fully warned confessions were therefore admissible.").
In fact, Legree even told the officers that they did not need to advise him of his Miranda rights before he made a statement. (Yovane: S. 36.)
Finally, in his habeas submission Legree does not make any allegations that his statements were coerced. Rather, he focuses on the initial police failure to give him Miranda warning. (E.g., Legree Br. at 22, 28.) According to Legree's counsel, because the Miranda warnings came after Legree made inculpating statements, the warnings "were thus hollow and ineffectual and the putative waiver of [Legree's] rights invalid." (Legree Br. at 28-29.) This, in essence, is the "cat out of the bag" argument rejected by the Supreme Court in Oregon v. Elstad. (See page 14 above.) Neither Legree nor Legal Aid on Legree's behalf have advanced any valid argument to show that the "totality of the circumstance" here rendered the Miranda warnings ineffective. Legree's post-Miranda second and third confessions were properly admitted at his trial.
The cases cited by Legree (Legree Br. at 28-29) are distinguishable: United States v. Anderson, 929 F.2d at 99-103 (defendant's second post-Miranda confession was properly suppressed as tainted by the first, coerced, pre-Miranda confession, where police forced defendant to choose between cooperating with authorities or speaking to a lawyer); United States v. Carter, 884 F.2d 368, 374-75 (8th Cir. 1989) (post-Miranda confession suppressed where it was the "fruit of an unconstitutional search"); United States v. Zerbo, 1999 WL 804129 at *2-14 (post-Miranda statement suppressed where law enforcement officers improperly coerced inculpatory pre-Miranda statements from mentally ill defendant and untruthfully told defendant they were trying to help him); Quartararo v. Mantello, 715 F. Supp. 449, 455-66 (E.D.N.Y.) (where police lied to juvenile and falsely promised protection, subsequent post-Miranda confessions should have been suppressed), aff'd mem., 888 F.2d 126 (2d Cir. 1989).
There is no evidence of police coercion surrounding Legree's pre-Miranda statement which would taint his post-Miranda confessions. Accordingly, Legree's petition should be denied.
CONCLUSION
For the reasons set forth above, I recommend that the Court deny petitioner Legree's habeas corpus petition.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).