*3 had asked or if GRAAFEILAND, nation Before VAN leave, have been he would not KEARSE, tried Circuit MESKILL and did not indi- Wieboldt so. permitted do Judges. Campaneria, cate this to however. In the to Cianfrone’s inquiry, Campaneria said elevator, Wieboldt asked that he was ready to be interviewed, was, where the gun told agreed and Cianfrone to return later. At him that he had thrown it into a trash can about p.m., 12:15 returned, Cianfrone A .22 lobby. caliber revolver was Campaneria consented to an interview. Ci- recovered later from the trash can. anfrone then read his Mi-
When Wieboldt and Campaneria rights again randa arrived in English. Caponigro floor, the tenth they found lying present also was through most ques- of the hallway twenty feet from door- tioning. Campaneria answered ques- way room. Sanchez was tions in yet broken English, understandable still bleeding head, from the but he was sometimes lapsing Spanish. into He said *4 dead. Campaneria asked Wieboldt what that he had shot Sanchez after Sanchez had happened. had Campaneria answered that suddenly stabbed him in the back while Sanchez, he and whom he only knew they were discussing Campaneria’s girl- “Morro,” had had an argument in his room friend. The two then struggled, and San- Campaneria’s girlfriend over and that when chez’s knife fell to the floor. Sanchez tried him, Sanchez tried to stab he shot Sanchez. to run away, Campaneria and shot him. then Wieboldt asked if go he could into Campaneria also indicated that he was in Campaneria’s room. Campaneria said he pain during this interview. key room, had locked his in the but did not At p.m. about 7:00 that evening, Cian- object to the obtaining officers key a frone returned to hospital to ask Cam- the hotel clerk. After obtaining key, paneria if felt well enough to be inter- the officers found the in disarray room and by viewed Assistant Attorney District Di- bloody knife on the floor. A search of Natale, but found Campaneria that had the room also uncovered one-half ounce of just undergone surgery. Some time after cocaine, drug paraphernalia, and brass p.m. 9:00 evening, same Cianfrone and knuckles. DiNatale, accompanied by a video techni- At time, about this the ambulance ar- cian with recording video equipment, visit- rived, and emergency medical services Campaneria ed and asked him if he felt
personnel began to Campaneria’s treat enough well to be Campane- interviewed. wound. Detective Cianfrone also arrived ria said that he not, was and the detective and observed that Campaneria appeared and the assistant attorney district left. pain. dazed and in Campaneria placed was ambulance, They and officer Caponigro returned the morning next at 10:00 accompanied him to hospital. On the a.m. with an audio technician and audio way, Caponigro read Campaneria rights recording equipment. Although Campane- under Arizona, ria was still in the ICU with various tubes (1966), L.Ed.2d in running body into his pain and had received English. Campaneria indicated he un- medication earlier the morning, rights derstood the and that he willing was nurse at the ICU said Campaneria should to answer questions. He said that be alert enough questioned. to be Cian- fight girlfriend was over drugs and that frone Campaneria asked if he wanted to were involved. He also said that was in them, talk with Campaneria which re- pain and occasionally lapsed Spanish. into “No, sponded, I don’t to talk you want report The medical relating to ambu- now, maybe come back later.” DiNatale lance transfer indicated that his status was then Campaneria told you “If want to “critical” that he was “alert/observ- us, talk to is the now time to do it.” Cam- ant.” paneria agreed then to the interview. The At approximately tape 11:45 a.m. audio that same recorder was up, set and DiNa- day, Detective Cianfrone arrived at the hos- tale read rights, his Miranda pital speak with Campaneria, was in who which understood, stated he (ICU). the intensive care unit In response began questioning and him. findings specific factual make did not Campaneria said interrogation, At this a written not file room, record and Cam- on the entered Sanchez that when him stabbed turned, opinion. and Sanchez
paneria pro- fought to then back. statements, in- trial, Campaneria’s At pro- hands himself, cutting his tect which recording cluding the audio Because to the floor. fell knife cess. evi- into offered jury, played for gun, get tried Sanchez Campaneria testified against him. dence bed, Campaneria sitting on his which was through interpreter, behalf on his own a shot at San- fired gun and grabbed the years old twenty-three stating that he was room, and fled then Sanchez chez. years three emigrated from Cuba had into ran again as Sanchez fired that Sanchez had He testified earlier. head. in the hitting Sanchez hallway, he had let on the door knocked employee to hotel told a then open. in, leaving the door He Sanchez gun into threw police call suddenly away, and turned Campaneria stated lobby. can trash strug- The two him in the back. stabbed thought interrogation that during floor. Cam- fell to the gled, and the knife He admit- girlfriend. over fight gun, which was reached for paneria drug paraphernalia cocaine ted time, because he at the *5 lying on his bed he denied that his but in the room grab try to that afraid Sanchez was fight with drugs dealing was struggle and moved They to it. continued the drugs. Towards was about Sanchez al- The two were open the door. he towards interview, was asked how of the end Campaneria room when dizzy, he felt out that most responded felt, and he gun hap- He a continue. to fire off shot. willingness to able a was yet indicated that DiNatale said head when pointed at Sanchez’s pened for water. to be also asked water because give him stumbled out not they could he fired shot. doctor, although the record hallway his and fell orders and the door down not had DiNatale indicate that appears having to shot San- Campaneria denied dead. occa- any doctors. spoken to and not recall he tried to flee could chez during inter- face his sionally wrinkled actually fired at many he had shots how His medical view, showing discomfort. Sanchez. that, having a despite serious records show contradiction explained the times alert at all wound, Campaneria was testimony prior state- and his his between condition was that his and oriented inability to of his artic- as the result ments stable. with his account of events ulate charged by indictment was interrogations and be- during his precision N.Y. degree, in the second with murder fully aware of what he cause was not 125.25, possession criminal Penal Law § He also testified being asked. degree, the third substance a controlled during the recorded asked DiNatale had 220.16, pos- and criminal Law Penal N.Y. § because he stop to interview interview second, third weapon in a session of English. did not understand Law degrees, N.Y. Penal fourth Campaneria’s re- denied The trial court trial, 265.02, Prior 265.03, to 265.01. §§ jury the lesser in- to quest to submit hearing Cam- a court held trial the state or “reck- second-degree, offense of cluded the state- suppress to paneria’s motion' During their manslaughter. delibera- less” law made the various had to ments he interroga- tions, the recorded had hearing, Po- officials. At enforcement jury subsequently played back. tion Wieboldt, Pier- Caponigro and lice Officers under ex- Campaneria had acted found Dis- Cianfrone, and Assistant no, Detective and convicted disturbance emotional treme At all testified. Attorney DiNatale trict degree. It in the first manslaughter him of hearing, the of the completion weap- of the cocaine convicted him also from the court bench denied charges. However, court ons suppress. motion to appealed convictions, A federal court hearing a habeas challenging the voluntariness of his state petition must ordinarily afford a presump ments, their admissibility Miranda, under tion of correctness to the findings factual and the failure to instruct on the lesser state 2254(d). court. 28 U.S.C. § included Appellate offense. The Division However, the presumption of correctness convictions, affirmed the but reduced the not does adhere in a case in which the state minimum term of his prison indefinite sen court has actually resolved the merits tence years from nine years. to six People dispute. a factual Ford v. Wainwright, Campaneria, v. 271, 123 A.D.2d 506 N.Y. 399, 410-11, 2595, 2602- (1st 1986). S.2d 344 Dep’t appeal Leave 03, 91 (1986) L.Ed.2d 335 (plurality opinion); this decision to the New York Court of United States ex Henderson, rel. Lewis v. Appeals was People Campane denied. v. Cir.), denied, 902-03 cert. ria, 69 N.Y.2d 504 N.E.2d U.S. 46 L.Ed.2d 373 (1986). N.Y.S.2d 1035 (1975). If the state court did provide a full and
Campaneria, fair hearing acting pro se, and did filed not make peti- findings reliable relating tion for a writ of corpus habeas the material supportable facts by record, federal district court. After obtaining federal evidentiary hearing response, required. State’s the district court Townsend denied Sain, petition U.S. hearing. without a peti- In S.Ct. tion, L.Ed.2d 770 claimed Neverthe that his confes- less, even if coerced, express sion no findings that his are assertion of made by court, right honored, remain silent federal was not court must initially assess trial court whether the improperly state court im charge failed pliedly findings made relating on the lesser included offense the mate of second-de- Id. rial facts. gree manslaughter, S.Ct. at 757-58. he was denied *6 Moreover, a unless it appears fair trial because of otherwise prosecutors’ the im- record, proper presume federal court may cross-examination and summation. applied state The district court the appropriate court Campane- concluded that Id. at law. ria’s 83 S.Ct. at statements were voluntary and not coerced, that he had expressed not a desire Campaneria’s At suppression hear to cut off interrogation process ing, disputes factual were minimal. merely certain interrogations, that the evi- only testimony offered at the hearing dence require did not an instruction that of Assistant District Attorney Di lesser included offense of second-degree Natale and police the various officers. The manslaughter, and that remaining record would appear therefore to indicate claims of error were not of federal consti- that the state trial court found the testimo magnitude. tutional ny of these witnesses credible and made requisite findings support factual to
DISCUSSION the conclusions necessary to deny the mo A. Entitlement to Evidentiary Hearing suppress. to tion The district court thus matter, As an initial Campaneria raises did err failing not in provide to question whether, least, at the very an evidentiary hearing. with should be entitled to an evidentiary hearing in the district court, court. The B. Coercion after holding a suppression hearing, adequacy of which does not Campaneria claims that his incul- challenge, denied Campaneria’s motion in patory a statements were made under coer ruling from the bench. express No factual cive conditions in violation of rights his findings were made in ruling the bench or under the Due Process Clause. A determi thereafter. Campaneria that, suggests be- nation as to the voluntariness of a confes cause of the express lack of findings, a requires sion inquiry into all the circum evidentiary federal hearing necessary. stances surrounding the law enforcement
1020 interroga- return later. to ators left whether ascertain to conduct officials' relatively short. were tions to resist will the accused’s overcame not that was confession brought questioners about of The conduct LeFevre, Terry v. Although overbearing. freely self-determined. or not coercive v. Green Cir.1988); (2d discomfort, not it was 413 pain and F.2d 862 he suffered Cir.), cert. (2d make him unable 901-02 Scully, F.2d as to render severe 850 so - suscepti- unduly 102 -, denied, voluntary statement U.S. interrogators. by that factors manipulation Relevant ble L.Ed.2d therefore, statements, were accused’s inculpatory include His considered be should coer- intelli of unconstitutional product or low not the of education his lack age, warn Miranda give cion. failure gence, the detention, of nature length of
ings, the
C. Waiver
physical
any use of
interrogation, and
Guarno,
v.
United
enforce
punishment.
custody
law
Once
Cir.1987).
in
officials,
must
an accused
ment
to re
rights
his constitutional
formed
facts
to several
points
counsel, and waiver
silent and
main
his statements
indicate
he claims
effective,
volun
must be
rights, to be
those
empha
He
involuntary.
coerced
made.
intelligently
knowingly and
tarily,
time, relatively
was,
sizes
Spring,
v.
Colorado
poor com
foreign-born, with a
young
L.Ed.2d
During the
language.
English
mand of the
Arizona,
U.S.
v.
(1987);
suffering
moreover, he was
interrogations,
1602, 1612,
L.Ed.2d 694
444, 86 S.Ct.
inwas
knife wound and
from a serious
that,
argues
because
(1966). Campaneria
hospital, he was
pain. At
significant
con
English
poor grasp of
of his
tubes
the ICU
with
questioned while
surrounding
circumstances
fusing
occasionally
body,
out of his
the Mi
running in and
did
understand
questioning,
He
of dizziness.
describes
complaining
given to
they were
warnings when
randa
effectively
“relentless.”
questioning
waive
him and therefore
self-incrimination.
against
privilege
circumstances, he
these
basis
On the
unpersuasive.
claim
find this
We
analogize his situation
attempts to
Arizona, Mincey
proficiency
though
the accused
Even
*7
2408,
290
57 L.Ed.2d
limit
may
98 S.Ct.
have been
language
English
U.S.
Mincey,
inapt.
making
In
is
analogy
The
him from
ed,
prevent
did
in the
con
accused,
Campaneria, was
of his
intelligent
like
waiver
knowing
and
in-
tubes
native
surgery with various
rights.
ICU after
stitutional
Nonetheless,
Campaneria,
body. Unlike
Spanish.
his
tongue
serted into
is
transcript
a tube
of
record,
of
speak
particular
to
because
he was unable
that,
by
interview,
al
reveals
had to communicate
recorded
in his mouth
an
English with
he had asked
paper,
though
spoke
broken
writing
pieces
Spanish,
stopped
lapsed into
occasionally
interview be
accent and
repeatedly
for
sufficient
English
he was on
lawyer,
get a
his command
he could
until
warn
fact lost
and in
him to
understood
edge of consciousness
medi
According
his
him.
to
396-
to
Id.
ings given
at
times.
several
consciousness
contrast,
records,
and observant
alert
he was
By
cal
at 2415-18.
98 S.Ct.
warnings were
during
times that
medical
according to his
Campaneria,
ad
that he was
each occasion
despite
given.
his
On
records,
and awake
was alert
that he
rights, he indicated
Campane-
vised
when
several occasions
pain. On
rights.1
those
interviewed,
interrog-
understood
to be
ria declined
custody
he was ad-
but before
brief,
police
while in
raises
Campaneria
in his
1. In a footnote
rights.
his constitutional
vised of
after
he made
that the statements
the claim
him
Wieboldt
fact
"ordered”
focuses on
lobby
made
with Wieboldt
left the hotel
Right
Invocation
D.
Remain
Silent
pulously honored,
example,
by renew
ing
questioning
only after
passage
When
suspect
privilege
invokes his
of a significant period of time
by
limit
against self-incrimination
in the
while
cus-
ing the
questioning
renewed
to a different
tody of law
officials,
enforcement
whether
subject matter
original
than the
interroga
refusing
form of
questions
to answer
tion.
See id.
104-07,
at
when, arrest, in the absence of an actual law directing Campaneria than accompany to them enforcement speak officials act or in a manner elevator, physically officers had not conveys that message they that would not verbally Campaneria indicated to that he was permit the accused to leave. United v. Therefore, not to free leave. none state- Guarno, 28, (2d Cir.1987). 819 F.2d 31-32 Even ments made in the hotel though Wieboldt testified that would not custody. made while in permitted Campaneria to leave at this Included E. Lesser to answer reflecting desire his Offense as tioned But statements questions. DiNatale’s that the maintains a sus- questions after on jury to response instructing in made not in court erred silent second-de- right to remain offense included pect has invoked the lesser Court Supreme manslaughter. about gree doubts to raise used cannot be cases, due that, capital in least at Smith, has held at 469 U.S. See initial invocation. instructed jury be requires process (invocation of 96-97, at 493-94 when included offenses any lesser on circumstanc- counsel). Under right to instruction. an such warrants evidence Campaneria’s invo- es, say that we cannot 637-38,100 Alabama, 447 U.S. 625, v. Beck was remain silent right cation of (1980). 2382, 65 L.Ed.2d S.Ct. scrupulously honored. process due whether yet to decide We have non-capital in result requires the same to have ad it error Although was split on context, circuits have and other evi interrogation into recorded mitted the Hoke, 160, Rice v. See issue. harmless error was dence, that this find we cases). Cir.1988) (reviewing We 164-65 Chapman v. doubt. beyond a reasonable case, in this issue not resolve that need 24, 824, California, 386 U.S. not enti- however, because was (1967). The recorded 17 L.Ed.2d second-degree on tled to an instruction It did entirely cumulative. statement manslaughter. had anything not contain lesser jury be instructed A should earlier unrecorded in his already stated not “(1) is theo- when offenses included and, in Wieboldt, Caponigro, statements greater commit the retically impossible to record Although a Cianfrone. particular, (2) committing the lesser crime without evidence impressive can be ed confession would of the evidence reasonable view trial, fact it was criminal defendant find that the permit over alone does not recorded statement lesser, not but had committed and sub overwhelming untainted come the New offense.” Id. at 165. Under greater, against Cam evidence stantively identical manslaughter— law, second-degree York Furthermore, our conclusion paneria. another, the death of recklessly causing jury asked changed simply because 125.15(1) (McKinney Law N.Y.Penal § interrogation played recorded to have the mur- 1987) included offense a lesser —is The evidence during deliberations. back degree. People v. Sulli- the second der in no different statement the recorded van, N.Y.2d 503 N.E.2d through that came from the evidence Cam- N.Y.S.2d We do police officers. testimony of that, although admitted- argues paneria of constitu an error lightly Sanchez, assume did not to shoot ly intended harmless, this is Instead, such as magnitude tional to kill him. intend con Anderson, F.2d at evidence see view of the posits, a reasonable finding killing effec record would support on this clude otherwise could relating to a re act of recklessness. was an error tively preclude unrecorded, con corded, opposed testimony, to his own According harmless. being considered fession from intentionally. Campaneria shot inappropriate. Such a result Cf. shooting, even absent An intentional California, Harrington required murder intent to kill specific *9 284 1726, 23 L.Ed.2d 254, 89 S.Ct. reckless degree, is not mere the second overwhelming evidence of (in (1969) light of is, by its An shoot another ness. intent to have would of conviction guilt, serious nature, reversal cause another an intent to law, Bruton v. United of New York injury. meant no violation Under physical 1620, 123, person 20 intend States, of a while causing 88 S.Ct. the death 391 U.S. injury consti physical er cause serious (1968), ing harmless could be L.Ed.2d 476 degree, in the first manslaughter tutes ror).
1023
125.20(1);
N.Y.Penal Law
People v. Ra
of any suggestion
§
Campaneria’s
man-
mirez,
115, 117-18,
76 A.D.2d
slaughter
N.Y.S.2d
conviction is sustainable on a
(1st Dep’t 1980),
the crime for which harmless error basis. Likewise at oral ar-
Campaneria was convicted. Because Cam- gument, even
an
after
extended colloquy
paneria admitted that he shot at Sanchez between Campaneria’s attorney and the
intentionally, no reasonable view of the evi Court on this subject during which counsel
dence
support
can
Campaneria’s claim that
pointed out that the State
argued
had not
he was entitled to an instruction on the
error,
harmless
the State still did
take
not
lesser included offense of second-degree
position
error was harmless.
manslaughter.
The State’s silence on this issue is under-
standable since the trial record reveals
CONCLUSION
such a highlighting of
tape
recording
The judgment of the district court dis- as to make the
argument
harmless error
missing
petition
for a writ of habeas untenable.
In the State’s opening state-
corpus is affirmed.
ment,
prosecutor
stated that he would
prove Campaneria’s guilt by Campaneria’s
KEARSE,
Judge,
Circuit
dissenting:
words;
own
he referred generally to both
I respectfully dissent from so much of
taped
interrogation and the earlier
the majority’s decision as concludes that
unrecorded statements.
In
summation,
the improper
admission
evidence
the however, he barely mentioned the unre-
tape
interrogation,
recorded
conducted in corded interviews that were properly ad-
petitioner
violation of
Ruben
mitted, undoubtedly because, notwithstand-
rights,
constitutional
see Michigan v. Mos-
ing the majority’s view that
the taped
ley,
96, 103-04,
423 U.S.
96 S.Ct.
326-
statements were “substantively identical”
(1975);
tape .... according to shooting, Robert Now he starts BURLINGTON OF CITY chases Morro tape. He Manager statement Whalen, Parks Operations He away. run said tried after Morro Department, Defen- and Recreation him. he killed dants-Appellees. I you for because tape play I won’t 89-7042. Docket No. morning. Was he you this played it for Mean- deadly force? imminent fear Appeals, Court of United defendant, the knife point at the ing the Circuit. Second running away. him. Sanchez is behind He fol- hand. gun in his got He’s this 14, 1989. Argued Nov. door, on the state- outside lows him Dec. Decided ment, tape— tape he said shot “on the again: And again: And in the head.” the deceased I am of what doubts you
If have correct, played I being saying, and going morning. I this
tape once you heard it I think that
play again it morning.
clearly this jury that it had prosecutor advised tape asking to listen option of
again. tape again ask to hear jury though And
during deliberations. its of evi- items for certain other asked
also any re- show dence, the record does not testimony rereading of the
quest for a Campane- Insofar police officers. concerned, jury ria’s statements tape. only for the inadmissible asked evidence improperly admitted When the by the incessantly emphasized
has been has been summation
prosecutor to its ex- pursuant
repeated deliberations, I do during its press request reasonably conclude can we believe possibility ‘reasonable is “no there might complained that the evidence ” conviction.’ to the contributed the dis-
I reverse the decision petition for habeas denying
trict court
corpus. Cassidy, Burlington, Vt.
Richard T. P.C.; Cassidy, Curtis, (Hoff, Pacht Agel, & School, Green, Chel- Vermont Law Steven