United States of America Ex Rel. Nathan Moore, Relator-Appellant v. Harold W. Follette, Warden, Greenhaven State Prison, Stormville, New York, 425 F.2d 925, 2d Cir. (1970)
United States of America Ex Rel. Nathan Moore, Relator-Appellant v. Harold W. Follette, Warden, Greenhaven State Prison, Stormville, New York, 425 F.2d 925, 2d Cir. (1970)
United States of America Ex Rel. Nathan Moore, Relator-Appellant v. Harold W. Follette, Warden, Greenhaven State Prison, Stormville, New York, 425 F.2d 925, 2d Cir. (1970)
2d 925
Nathan Moore was convicted of the felony murder of Mayme Wright in 1957
after a jury trial in the New York Court of General Sessions; in accordance with
the jury's recommendation he was given a life sentence. On appeal he
contended that a transcript of a confession, received on defense counsel's
explicit statement of no objection after certain passages had been deleted, was
involuntary because taken while he was experiencing withdrawal symptoms. A
In 1965 Judge Brennan in the District Court for the Northern District of New
York denied an application for habeas corpus without prejudice to its renewal
in the event of a refusal by the state courts to take appropriate action under the
principle then recently enunciated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct.
1774, 12 L.Ed.2d 908 (1964). Moore applied to the New York courts for a
hearing to determine the voluntariness of his confession as authorized by
People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). A
state judge initially directed a hearing but later recalled his decision on the
ground that there had been no objection to receipt of the confession and that the
question of voluntariness had not been submitted to the jury by the court in its
charge. See People v. Huntley, supra, 15 N.Y.2d at 77, 255 N.Y.S.2d at 843,
204 N.E.2d at 183. The Appellate Division affirmed the order denying a
hearing without opinion, 25 A.D.2d 955, 270 N.Y.S.2d 378 (1st Dept. 1966),
and leave to appeal to the Court of Appeals was denied.
Moore reapplied for federal habeas corpus, this time in the Southern District of
New York. He alleged, as he had previously done in the state courts, that he
was a narcotics addict and that his transcribed confession was given while he
was experiencing withdrawal symptoms. Judge Cooper denied the application
without taking testimony. He held that "there was a deliberate tactical decision
by defendant through counsel not to object to the confession," as evidenced by
counsel's having obtained the prosecutor's consent to deletions and the express
statement of no objection; that "defendant has not alleged he did not participate
in counsel's decision," and that there was thus "a deliberate by-passing of state
remedies within the meaning of Fay v. Noia," 372 U.S. 391, 439, 83 S.Ct. 822,
9 L.Ed.2d 837 (1963).
Moore then addressed a letter to the district court. This said in part:
"Though it be futile, I can sincerely state that not one of my counsel at trial,
advised me as to my rights to a preliminary hearing as to involuntary confession
nor any of the intricacies governing the admissibility of confessions, also, they
were made aware of witnesses that could testify to the circumstances under
which my confession was taken, but for some reason unknown to me they were
never called and even now I have affidavits from same witnesses."
Treating the letter as a motion for reargument and a petition for a certificate of
probable cause, the judge granted both motions but again denied the writ,
stating "Even assuming the facts now alleged by petitioner are true, we adhere
to our initial disposition."
The appeal from Judge Cooper's order was argued to us shortly after United
States ex rel. Vanderhorst v. LaVallee, 2 Cir., 417 F.2d 411, had been argued to
a panel on which Judge Anderson also sat. We deferred decision pending the
determination of that appeal, which was ultimately heard by the court in banc
and decided on October 10, 1969, Id. at 411. Opinions then prepared by this
panel and circulated to the full court elicited a considerable difference of
opinion with respect to whether Moore was entitled to any evidentiary hearing
concerning his second confession and, if so, whether this should be on
voluntariness, on deliberate by-pass, or on both. Further consideration has led
the panel to conclude that it is unnecessary to decide these difficult questions
since any error in admitting the second confession would have been harmless.
We take the facts developed at the state trial as stated in the petition for habeas
corpus itself:
Moore and Elizabeth McCormick, posing as Mr. and Mrs. McCormick, had
rented a basement apartment in a brownstone house owned by the decedent,
Mayme Wright, who lived upstairs. Charles Bland, who lived next door to the
landlady, testified that about 11 P.M. on May 4, 1956, Elizabeth McCormick
knocked on his door and asked where the landlady's room was located. Having
informed her, he heard Elizabeth knock there and say "Somebody down stairs
wants to see you," and Mayme respond "Wait a minute." Three days later he
found Mayme's room in disarray and her dead body on a bed in the basement
apartment. The latter facts were corroborated by Susie Popkins, a friend of
Mayme Wright, and by Patrolman Murray. There was a cord around Mayme's
left arm. An assistant medical examiner testified that death had been caused by
strangulation and fracture of the larynx.
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Moore then made an oral statement to the detective, the voluntary character of
which has never been challenged. He recounted that he and Elizabeth had
discussed the possibility of burglarizing Mayme's room, that they had decided
to involve one Eugene Topping who had a gun, that they had determined to lure
Mayme to their apartment by telling her that the bathroom was overrunning,
that Moore put a "yoke" around Mayme, and that Topping then emerged from
the bathroom. Moore and McCormick went up to Mayme's room to accomplish
the burglary. When they returned with the loot, they found that Topping had
untied her and she started to scream. Moore put an arm lock around her and tied
a piece of material around her mouth. Elizabeth was sent to get a taxi. When she
found one, Moore and Topping joined her, leaving Mayme unconscious and
gurgling. After stopping at Topping's house where they examined the stolen
property, Moore and McCormick went to the hotel. Moore admitted that the
money found in his possession, as well as costume jewelry and a hat box found
at his mother's home, had been taken from Mayme's room.
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are convinced beyond a reasonable doubt that admission of the confession was
harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d
284 (1969).
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Affirmed.