Opposition Brief — New York v. Zappulla

The defendant spent much of March 17, 1998, at the hospital

being treated for injuries sustained in a car accident on the

way to central booking and therefore, was not in a continuous

custodial environment. Moreover, the second interrogation

concerned a crime unrelated to that for which he was initially

arrested.

(A. 78a.)

The Federal Proceedings (See Pet. at 11-13)

The Petition fails to indicate the following aspects of the

District Court’s decision.

The District Court agreed with the Appellate Division that

Respondent‘s constitutional rights had been violated in the taking

of the confession. (A. 69a.) The District Court characterized the

error as involving Respondent's “constitutional right to counsel"

(A. 67a) and "Miranda rights" (A. 69a).

The District Court found: that when the police administered

the Miranda warnings to Respondent, "he refused to talk about the

theft, although he did talk about other matters"; that when the

police attempted to question Respondent about the murder, he

“stated he wanted a lawyer"; and that the police advised Respondent

that they could not speak to him if he wanted a lawyer. (A. 56a.)

The Petition also fails to indicate that the Second Circuit

agreed with these findings of the District Court (A. 3a), and held

that the District Court had properly adopted the Appellate

Division’s findings (A. 22a). While the Petition does indicate

that the Second Circuit held that the admission of Respondent's

confession violated his "due process rights" (Pet. at 19 (citing A.

22a)), the Petition fails to indicate that the Second Circuit based

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this holding on the “‘’totality of the circumstances.‘" (A. 22a

(quoting Arizona v. Fulminante, 499 U.S. 279, 286 (1991) .)

In seeking to have the Second Circuit affirm the District

Court's judgment on the alternative ground that there was no

constitutional error in the admission of Respondent’s confession,

Petitioner's appellate brief (at 39-40) acknowledged that once a

suspect invokes the right to remain silent, then the police may not

question the suspect again, even about a different crime, without

renewed Miranda warnings and the passage of a significant amount of

time. See Arizona_v. Roberson, 486 U.S. 675, 683-84 (1988);

Michigan v. Mosely, 423 U.S. 96, 106 (1975). In that brief (at 39-

40), Petitioner nevertheless argued that Respondent did not invoke

his right to remain silent when he told the police that he did not

wish to speak about the theft because he did not wish to go to

jail. Respondent’s reply brief in the Second Circuit (at 20-22)

took issue with this argument. In her dissenting opinion in the

Second Circuit, Judge Raggi acknowledged that Mosely would have

been violated if the District Court and the Second Circuit were

correct that Respondent had told the police that he refused to

speak about the theft; but Judge Raggi believed that the record was

ambiguous on this subject. (A. 52a.)

Also in his Second Circuit brief (at 41-42), Petitioner

acknowledged that the police may not question a suspect in custody

if the suspect makes an unequivocal request for counsel. Smith v.

Illinois, 469 U.S. 91, 95 (1984) (per curiam); see Roberson, 486

U.S. at 677-78. Petitioner nevertheless argued in that brief (at

“6s

41-42) that there was no invocation of the right to counsel here

because, after Respondent indicated his desire for counsel and the

police told him that they could not speak to him if he obtained

counsel, Respondent stated that he wanted to speak to an assistant

district attorney, not to a defense attorney. (See Pet. at 5-6.)

Respondent’s reply brief in the Second Circuit (at 23-25) took

issue with this argument.

Having found the due process violation, the Second Circuit did

not reach these additional arguments. (A. 22a.)

REASONS FOR DENYING THE WRIT

POINT I

THE SECOND CIRCUIT MERELY APPLIED SETTLED LAW,

RECOGNIZED BY THIS COURT AND THE OTHER CIRCUITS,

TO THE FACTS WHEN IT AGREED WITH THE CONCLUSION

OF THE DISTRICT COURT AND THE APPELLATE DIVISION

THAT THE POLICE OBTAINED RESPONDENT’S CONFESSION

IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

The first question presented in the Petition (Pet. at i) and

the first point heading in the Reasons for Granting the Writ

portion of the Petition (Pet. at 15) portray the issue before this

Court--an issue on which the circuit courts supposedly are in

conflict--as the extent to which the passage of time has an effect

on the efficacy of Miranda‘ warnings. That portion of the Petition

contends that the Second Circuit agreed with the other courts in

this case that Respondent's confession was obtained in violation of

his constitutional rights "primarily because defendant made that

‘Miranda v. Arizona, 384 U.S. 436 (1966).

=,

Statement 24 hours after he received Miranda warnings." (Pet. at

14.) That portion also begins by implying that the Second Circuit,

unlike the other circuit courts, utilized a "per se" approach to

conclude that Respondent's rights were violated on the basis se the

passage of time. (Pet. at 15-16).

However, the Second Circuit did not use a "per se" approach.

Rather, although the Petition does not so indicate, the Second

Circuit specifically stated that it based its holding on the

"totality of the circumstances." See supra pp. 5-6.

The Statement of the Case in the Petition similarly

mischaracterizes the Appellate Division’s holding in this respect,

which holding specifically rejected a "per se" approach. See supra

pp. 4-5.° Nor does the Petition indicate anywhere that the

District Court agreed with the Appellate Division's position, or

that the Second Circuit approved of the District Court’s agreement

with the Appellate Division (A. 22a).

To the extent that anyone is espousing a "per se" approach or

placing primacy on the amount of time that elapsed since the

administration of Miranda warnings, it is Petitioner in the

Petition, by attempting to create a conflict among the circuit

courts--indeed, a conflict supposedly so severe as to warrant this

Court’s intervention--based solely on the fact that cases from

Other circuit courts, also utilizing a_ totality-of-the-

‘Later in the Reasons for Granting the Writ portion, the

Petition finally acknowledges to some extent that both the Second

Circuit and the Appellate Division did not use per se approaches.

(A. 19a.)

a

circumstances approach, found no constitutional violations despite

the fact that more than 24 hours had elapsed since the

administration of Miranda warnings in the cases before those

courts. Obviously, in virtually any case in which a federal

appellate court finds a constitutional violation in part because of

the time that elapsed since the administration of the warnings, the

losing party can cite other circuit court cases in which the

elapsed time was greater and yet the courts found no violation.

And yet it would not be aoreuclate tos this Court to review such

cases on the basis on an alleged "conflict" among the circuits.

Indeed, when one puts aside the question of the time elapsed

since the administration of the Miranda warnings and looks at the

other factors in this case that support the conclusion of the

Second Circuit, the District Court, and the Appellate Division, one

is struck by the absence of those factors in the circuit court, and

even the state, cases cited in the Petition, as well as in this

Court’s decision.in Wyrick v. Fields, 459 U.S. 42 (1982) (per

curiam). (See Pet. at 16-19.)

In the instant case, not only did Respondent fail to make a

statement when the police administered the Miranda warrings shortly

after his arrest, but he specifically told the police that he did

not wish to make a statement about the alleged theft for which he

was arrested, as he did not want to go to jail, and he even tried

to escape from police custody. See supra p. 2. So when the police

indicated to Respondent 24 hours later their desire to question him

about a murder, he could hardly have believed that his expressed

-~9-

wish not to incriminate himself was being honored, or that any

similar expressions would be honored in the future. See, e.g.,

Miranda, 384 U.S. at 468-69; see also Arizona v. Roberson, 486 U.S.

675, 663-84 (1988).

In contrast, in all of the cases cited in the Petition, the

defendant had waived his or her Miranda rights--and, in all the

federal cases, the defendant also had answered the police questions

about the crime--when the police administered the Miranda warnings.

Moreover, in the instant case, the police questioned

Respondent about a different crime from the one as to which they

had originally administered the Miranda warnings. Indeed, Miranda

specifically holds that the need for Miranda warnings cannot be

obviated by "the defendant[’s] . . . prior contact with

authorities." 384 U.S. at 468-69. And in Michigan v. Mosely, 423

U.S. 96, 106 (1975), this Court held that where the defendant

invokes the right to remain silent as to one crime, the police may

question the defendant as to a different crime provided that new

warnings are given. See also Roberson, 486 U.S. at 683-84.

In contrast, in all of the cases cited in the Petition, the

subsequent questioning was on the same crime as that as to which

the police had administered the warnings.

Further, Respondent was not in a continuous police custodial

environment between the administration of the Miranda warnings and

the questioning concerning the murder. Rather, he had spent

approximately eight hours immediately proceeding that questioning

in the hospital. Moreover, he was in the hospital because he had

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been struck by a car. After the police had him removed from the

hospital around 1:00 a.m. so that they could speak to him, he

seemed tired and was limping. See supra pp. 2-3. These factors

make it even less likely that Respondent would have believed that

any request to remain silent was being, or would be, honored, or

that Respondent would have fully comprehended the applicability of

all of his Miranda.rights to the murder investigation, or would

have remembered all of those rights.

In contrast, in all of the federal cases cited in the Petition

save one, the defendant was continuously in a police custodial

environment, and in none of those cases was there any indication of

anything questionable about the defendant's physical or mental

condition at the time of the subsequent questioning.‘

‘In Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975), cert.

denied, 425 U.S. 950 (1976), the defendant was arrested, provided

with the Miranda warnings, signed a written waiver of his rights,

and answered questions about the crime. Twelve days later, during

which interval he was not in continuous police custody, he answered

questions about the same crime without Miranda warnings. The court

held that no new warnings were needed. Id. at 120-22.

In People v. Mickle, 814 P.2d 290 (Cal. 1991), cert. denied,

503 U.S. 988 (1992), the defendant had turned himself in for

‘ questioning about the crime at issue. He was interviewed three

times over a four-hour period, waived his Miranda rights more than

once, and gave incriminating statements. Thereafter, he was

suspected of being a suicide risk, and he spent a night in the

hospital, and a nurse characterized it as having been a “bad"

night. At 10 o’clock the next morning, the police visited the

defendant in the hospital. "He looked calm and normal." They

spoke to him for ten minutes without new warnings about the same

crime, and the court held that no new warnings were needed. Id. at

304-05.

In Koger v. State, 17 P.3d 428 (Nev. 2001) (per curiam), the

police administered Miranda warnings, and the defendant then

answered questions about the crime. Later that day, the warnings

were administered again, and he signed a Miranda waiver form. Two

weeks later, he was interviewed again, about the same crime,

without new warnings. Although he had not been in police custody

-ll-

Most importantly, as the Second Circuit held (A. 22a), when

all of these factors are considered together, this case is

distinguishable from all of the cases cited in the Petition because

the issue here is not merely whether or not renewed Miranda

warnings should have been given, but whether Respondent’s

confession was involuntary and thus was obtained in violation of

due process. There is simply no reason for this Court to review

this case to correct any perceived conflict with cases from other

jurisdictions.

Moreover, even were this Court to grant certiorari herein and

rule that there was no Miranda or due process violation on the

basis of the totality-of-the-circumstances approach, there would

still be the questions whether Respondent invoke his right to

remain silent, requiring new Miranda warnings, or invoked his right

to counsel, thus barring any further questioning even with new

warnings. See supra pp. 2-3, 5-7. (See also Pet. at 6; A. 85a.)

These are substantial questions which the Second Circuit would have

to resolve upon remand, unless this Court thought it appropriate to

resolve them itself in the first instance, but see Dandridge v.

Williams, 397 U.S. 471, 475-76 (1970); Aetna Casualty Co. v.

Flowers, 330 U.S. 464, 468 (1947); United States v. Ballard, 322

U.S. 78, 88 (1944).

during that two-week interval, there was no indication that his

mental or physical condition was impaired during that final

interview. The court held that no new warnings were required. Id.

at 429-30.

a42-

Accordingly, this Court should not grant certiorari on the

question of whether the Second Circuit and the other courts below

were correct in finding a violation of Respondent's constitutional

rights in the admission of his confession to the police.

POINT II

THE QUESTION OF THE APPROPRIATE HARMLESS-ERROR

STANDARD TO BE APPLIED IN THIS CASE

IS A RELATIVELY INCONSEQUENTIAL ONE

AS TO WHICH THIS COURT HAS REPEATEDLY DENIED

CERTIORARI, AND IF THIS COURT WERE DISPOSED

TO RESOLVE THAT QUESTION AND MORE IMPORTANT,

RELATED QUESTIONS, THIS CASE DOES NOT PROVIDE

THE PROPER VEHICLE FOR DOING SO. .

The Second Circuit in this case held that because the

Appellate Division applied Chapman v. California, 386 U.S. 18, 24

(1967) in finding that the constitutional error was harmless, then

the appropriate standard of review for the federal habeas courts is

an application of AEDPA’s “unreasonable application" rule to

Chapman, 28 U.S.C. § 2254(d) (1), rather: than the "substantial and

injurious effect or influence" standard this Court enunciated for

section 2254 cases in Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). (A. 6a-8a.) The Second Circuit’s holding followed by two

days the same holding by a different panel of the Second Circuit in

Gutierrez v. McGinnis, 389 F.3d 300, 303-07 (2d Cir. 2004), and

followed a similar holding in the Eighth Circuit. Brown v.

Luebbers, 371 F.3d 458, 469 (8th Cir. 2004) (en banc), cert.

denied, 125 S. Ct. 1397 (2005); see Whitmore v. Kemna, 213 F.3d

431, 433 (8th Cir. 2000).

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While that holding in this case continues a split among the

circuit courts on this issue, a grant of certiorari in this case to

resolve that conflict would be inappropriate, for a number of

reasons. First, the difference in the two standards is a minor

one, and rarely matters. Second, the difference fairly clearly

does not matter in this case. Third, there are, or will be, other

cases which more clearly present the issue of how the difference

matters. Fourth, this Court has denied writs of certiorari to

resolve this issue in the past. Fifth, ever since this Court

decided Brecht more than a decade ago, there has been a circuit

conflict on a related issue as to which there is a clear difference

between the two standards: whether a habeas court should apply

Brecht or Chapman where the state court did not apply Chapman; and

yet, over the years, this Court has repeatedly denied petitions for

writs of certiorari to resolve that more important issue. Finally,

the Second Circuit’s choice of the standard in this case is the

correct one. Accordingly, the Court should deny the writ sought

herein.

The difference between the Chapman and Brecht standards, while

significant, is "less significant than it might seem." Brecht, 507

U.S. at 643 (Stevens, J., concurring); see O'Neal v. McAninch, 513

U.S. 432, 439 (1995) (noting importance of fact that Justice

Stevens provided the fifth vote in Brecht). Both standards place

the burden of proving an absence of prejudice on the prosecution.

Id. at 437. Chapman requires proof beyond a reasonable doubt,

Chapman, 386 U.S. at 24, while Brecht requires proof by

ye

significantly more than a preponderance of the evidence.’ So when

one adds AEDPA’s requirement that the state court's application of

Chapman must be unreasonable, there is little practical difference

between Brecht and AEDPA/Chapman.

The Second Circuit acknowledged as much in Gutierrez, 389 F.3d

at 305-06 & n.6, and other circuit courts have echoed this

sentiment, Bryson v. Ward, 187 F.3d 1193, 1205 & n.10 (10th Cir.

1999), cert. denied, 529 U.S. 1058 (2000); Nevers v. Killinger, 169

F.3d 452, 371-72 (6th Cir.), cert. denied, 527 U.S. 1004 (1999),

abrogated on other grounds, Harris v. Stovall, 212 F.3d 940, 942

(6th Cir. 2000). Thus, prior to Gutierrez, in the cases in which

the Second Circuit declined to decide the issue of which standard

to use, that court either found that both standards were met, Ryan

v. Miller, 303 F.3d 231, 253-56 (2d Cir. 2002); Noble v. Kelly, 246

F.3d 93, 101, 101-02 n.5 (2d Cir.), cert. denied, 534 U.S. 886

(2001), or found that neither standard was met, Fuller v. Gorczyk,

273 F.3d 212, 220-21 (2d Cir. 2001); Loliscio v. Goord, 263 F.3d

178, 185-91 & mn.l, 7 (2d Cir. 2001). Other circuits have had

similar experiences. Allen v. Lee, 366 F.3d 319, 321 (4th Cir.

2004) (en banc, per curiam), cert. denied, 125 S. Ct. 208 (2005);

Denny v. Gudmanson, 252 F.3d 896, 905 n.4 (7th Cir.), cert. denied,

534 U.S. 938 (2001); Anderson v. Cowan, 227 F.3d 893, 898 n.3 (7th

"The Brecht standard is more burdensome on the prosecution

than the harmless-error standard in cases involving ineffective

assistance of counsel or prosecutorial suppression of exculpatory

evidence. Kyles v. Whitley, 314 U.S. 419, 435-36 (1995). And the

defendant satisfies that latter standard by proving prejudice by

less than a preponderance of the evidence. Id. at 434.

-15-

Cir. 2000); Tucker v. Johnson, 242 F.3d 617, 629 n.16 (Sth Cir.),

cert. denied, $33 U.S. 972 (2001); Thomas v. Gibson, 218 F.3d 1213,

1225 n.12 (10th Cir. 2000); Whitmore, 213 F.3d at 433.

In both the instant case and in Gutierrez, the Second Circuit

resolved the issue of the proper standard, not because it had to,

but because of this Court’s decision in Mitchell v. Esparza, 540

U.S. 12, 17-19 (2003) (per curiam), in which the Court used the

AEDPA/Chapman standard in a section 2254 case. (A. 8a). Gutierrez,

389 F.3d at 306-07.° As Judge Raggi indicated in her dissent in

this case, “I expect that the majority would conclude that the

result it reaches today would pertain even under” the Brecht

standard. (A. 26a-27a n.2.) After all, the Second Circuit in this

case found the evidence against Respondent to have been "weak" (A.

10a); noted the great difficulty in finding a confession harmless

(A. 20a-21a); relied on cases which employed the Brecht/Kotteakos’

standard (A. 9a-10a, 15a); see Wray v. Johnson, 202 F.3d 515, 525-

26 (2d Cir. 2000); United States v. Jean-Baptiste, 166 F.3d 102,

108 (2d Cir. 1999); placed great emphasis on the hung jury at the

first trial (and the prosecution’s greater use of the confession at

the second trial);*® and extensively discussed a host of other

"In Penry v. Johnson, 532 U.S. 782, 793-76 (2001), both the

Respondent’s Brief (at 31) and the Petitioner's Reply Brief (at 16)

sought application of the Brecht standard, without mentioning the

AEDPA/Chapman standard, and thus this Court acceded to the parties’

wishes without comment at oral argument or in its decision.

*Kotteakos v. United States, 328 U.S. 750 (1946).

“Federal courts employing the Brecht/Kotteakos standard not

infrequently find prejudice based solely, or primarily, on the fact

that the first jury hung. Ghent v. Woodford, 279 F.3d 1121, 1131

st6n

factors arguing in favor of a finding of prejudice, see supra pp.

3-4. Indeed, even were this Court to grant certiorari herein and

decide that the Brecht standard is the appropriate one, the normal

course would then be for this Court to remand the case to the

Second Circuit to employ Brecht. Rose v. Clark, 478 U.S. 570, 584

(1986).

If there could be any appreciable difference between Brecht

and AEDPA/Chapman, it would be in a case in which the circuit court

found an unreasonable application of Chapman, not on the basis of

the result reached by the state court, but on the basis of the

reasoning of the state court. In applying section 2254(d) (1), this

Court has focused on the result reached by the state court,

Rompilla v. Beard, 125 S. Ct. 2456, 2005 U.S. LEXIS 4846, at *12-28

(June 20, 2005); Yarborough v. Alvarado, 541 U.S. 652, 660-69

(2004); Mitchell, 540 U.S. at 17-19; Bell v. Cone, 535 U.S. 685,

698-702 (2002), or on both that result and the reasoning applied by

the state court, Wiggins v. Smith, 539 U.S. 510, 522-34 (2003);

(9th Cir. 2002) (focusing on hung jury and prosecution's change of

trial strategy at second trial) (cited by Second Circuit herein at

16a-17a); United States v. Paquio, 114 F.3d 928, 935 (9th Cir.

1997) (sole ground); United States v. Thompson, 37 F.3d 450, 454

(9th Cir. 1994) (hung jury at first trial is "[p]ersuasive evidence

of prejudice"); United States v. Ince, 21 F.3d 576, 579-85 (4th

Cir. 1994) (finding plain, nonconstitutional error, primarily

because first jury hung and because of devastating effect of

confessions) (cited by Second Circuit herein at 15a); United States

v. Sanders, 964 F.2d 295, 296-97, 299 (4th Cir. 1992); United

States v. Boroni, 758 F.2d 222, 224-25 (7th Cir. 1985); United

States v. Conley, 503 F.2d 520, 523-24 (8th Cir. 1974); United

States v. McCarthy, 445 F.2d 587, 589-90 (7th Cir. 1971) (sole

ground); see Boyette v. LeFevre, 246 F.3d 76, 91-92 (2d Cir. 2001)

(finding prejudice by applying AEDPA to more exacting standard for

prosecutorial suppression of exculpatory evidence, primarily

because of hung jury) (cited by Second Circuit herein at 15a).

mt,

Williams v. Taylor, 529 U.S. 362, 395-99 (2000), but has repeatedly

rejected--albeit under the circumstances of the particular cases--

findings of umreasonable applications relying solely on the

reasoning of the state court, e.g., Bell v. Come, 125 S. Ct. 847,

853-56 (2005); Middleton v. McNeil, 541 U.S. 433, 437-38 (2004);

Price v. Vincent, 538 U.S. 634, 640-43 (2003); Woodford v.

Visciotti, 537 U.S. 19, 22-27 (2002) (per curiam).

Not surprisingly, the only case cited in the Petition--and the

only case the undersigned could locate-~-in which a circuit court

reached a different result in its application of Brecht and

AEDPA/Chapman to the circumstances before it, is one in which the

finding of an unreasonable application of Chapman focused on the

reasoning of the state court, whereas the wholly result-oriented

Brecht standard was not satisfied. Jones v. Polk, 401 F.3d 257,

264-66 (4th Cir. 2005). If this Court were generally disposed to

grant certiorari to resolve the issue at hand--as well as the issue

whether a finding of an unreasonable application may be based

solely on the reasoning of the state court--Jones would be the sort

of case in which it should do so.”

Significantly, this Court has declined in the past to grant

certiorari on the very issue at hand. E.g., Kennedy v. Lockyer, 379

F.3d 1041, 1053-54 (9th Cir. 2004), cert. denied, No. 04-679, 73

U.S.L.W. 3621 (Apr. 18, 2005), Questions Presented reprinted at 73

U.S.L.W. 3403 (Jan. 11, 2005); Allen, 366 F.3d 319, Questions

Presented reprinted at 73 U.S.L.W. 3124 (Aug. 24, 2004); Aleman v.

“No petition for certiorari has been filed in Jones.

ath.

Sternes, 320 F.3d 687, 689-91 (7th Cir.), cert. denied, 539 U.S.

960 (2003), Questions Presented reprinted at 71 U.S.L.W. 3780 (June

17, 2003); Barker v. Yukins, 199 F.3d 867, 872, 874, 876 (6th Cir.

1999), cert. denied, 530 U.S. 1229 (2000), Questions Presented

reprinted at 68 U.S.L.W. 3688 (May 2, 2000).”

Perhaps even more significantly, ever since this Court decided

Brecht more than a decade ago, there has been a circuit conflict on

a related issue as to which there is a clear difference between the

two standards: whether a habeas court should apply Brecht or

Chapman where the state court did not apply Chapman.’ This

“Both with respect to the issue at hand and with respect to

the issue of the use of Brecht or straight Chapman analysis where

the state court did not apply Chapman, see infra pp. 19-21 & note

13, there may be many additional cases other than those so

identified in this Brief in which this Court declined invitations

to resolve those issues. Unfortunately, United States Law Week--

the only method reasonably available to the undersigned to

ascertain the questions presented in cases in which this Court

denied certiorari--rarely if ever discloses the questions presented

in cases involving in forma pauperis applications where this Court

denies certiorari.

“The Eighth Circuit has repeatedly held, both before and after

the passage Of AEDPA, that a habeas court should apply a straight

Chapman analysis where the state court did not apply Chapman. E.q.,

Richardson v. Bowersox, 188 F.3d 973, 978-79 (8th Cir. 1999), cert.

denied, 529 U.S. 1113 (2000); Lingar v. Bowersox, 176 F.3d 453, 458

(8th Cir. 1999), cert. denied, 529 U.S. 1039 (2000); Beets v. Iowa

Dep't of Corr. Servs., 164 F.3d 1131, 1134 n.3 (8th Cir.), cert.

denied, 528 U.S. 825 (1999); Cox v. Norris, 133 F.3d 565, 572 (8th

Cir. 1997), cert. denied, 525 U.S. 834 (1998); Joubert v. Hopkins,

75 F.3d 1232, 1245 (8th Cir.), cert. denied, 518 U.S. 1029 (1996);

Sidebottom v. Delo, 46 F.3d 744, 756 (8th Cir.), cert. denied, 516

U.S. 849 (1995); Williams v. Clarke, 40 F.3d 1529, 1540-41 (8th

Cir. 1994), cert. denied, 514 U.S. 1033 (1995).

However, Other circuits have reach the opposite conclusion.

E.g., Hassine v. Zimmerman, 160 F.3d 941, 950-53 (3d Cir. 1998),

cert. denied, 526 U.S. 1065 (1999); Smith v. Dixon, 14 F.3d 956,

979-80 (4th Cir.) (en banc), cert. denied, 513 U.S. 841 (1994);

Pyles v. Johnson, 136 F.3d 986, 995 n.6 (5th Cir.), cert. denied,

524 U.S. 933 (1998); Billiot v. Pucket, 135 F.3d 311, 318 (5th

nj 6.

conflict centers on the following language from Brecht:

State courts are fully qualified to identify constitutional

error and evaluate its prejudicial effect on the trial process

under Chapman, and state courts often occupy a superior

vantage point from which to evaluate the effect of. trial

error. For these reasons, it scarcely seems logical to

require federal habeas courts to engage in the identical

approach to harmless-error review that Chapman requires state

courts to engage in on direct review.

507 U.S. at 636 (citation omitted). Yet, over the years, this

Court has repeatedly denied petitions for writs of certiorari to

resolve the conflict on that more important issue. E.g., Fortini v.

Murphy, 257 F.3d 39, 48-50 (1st Cir. 2001), cert. denied, 535 U.S.

Cir.), cert. denied, 525 U.S. 966 (1998); Hoque v. Johnson, 131

F.3d 466, 498-99 (Sth Cir. 1997), cert. denied, 523 U.S. 1014

(1998); Mitzel v. Tate, 267 F.3d 524, 534 (6th Cir. 2001), cert.

denied, 535 U.S. 966 (2002); Gilliam v. Mitchell, 179 F.3d 990,

994-95 (6th Cir. 1999), cert. denied, 528 U.S. 1120 (2000); Coe v.

Bell, 161 F.3d 320, 335 (6th Cir. 1998), cert. denied, 528 U.S. 842

(1999); Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert.

denied, 516 U.S. 1041 (1996); Anderson v. Calderon, 232 F.3d 1053,

1081 (9th Cir. 2000), cert. denied, 534 U.S. 1036 2001);

Willingham _v. Mullin, 296 F.3d 917, 931 (10th Cir. 2002), cert.

denied, 538 U.S. 1036 (2003); Toles v. Gibson, 269 F.3d 1167, 1176-

77 (10th Cir. 2001), cert. denied, 538 U.S. 948 (2003); Walker v.

Gibson, 228 F.3d 1217, 1236 (10th Cir. 2000), cert. denied, 533

U.S. 933 (2001); James v. Gibson, 211 F.3d 543, 554 (10th Cir.),

cert. denied, 531 U.S. 1128 (2001); Rogers _v. Gibson, 173 F.3d

1278, 1286 (10th Cir. 1999), cert. denied, 528 U.S. 1120 (2000);

Walker v. Attorney Gen., 167 F.3d 1339, 1348 (10th Cir.), cert.

denied, 528 U.S. 987 (1999); Davis v. Exec. Director, 100 F.3d 750,

772-73 n.20 (10th Cir. 1996), cert. denied, 520 U.S. 1215 (1997);

Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995), cert.

denied, 516 U.S. 1123 (1996); Horsley v. Alabama, 45 F.3d 1486,

1492 n.11 (11th Cir.), cert. denied, 516 U.S. 960 (1995).

The issue is still an open one in the First and Second

Circuits. Benn v. Greiner, 402 F.3d 100, 104-05 (2d Cir. 2005);

Sanna v. DiPaulo, 265 F.3d 1, 14 n.6 (lst Cir. 2001); Fortini v.

Murphy, 257 F.3d 39, 48-50 (lst Cir. 2001), cert. denied, 535 U.S.

1018 (2002). See also Rompilla, 125 S. Ct. 2456, 2005 U.S. LEXIS

4846, at *28 (if state court does not apply the harmless-error

standard for claim of ineffective assistance of counsel, then,

under AEDPA, habeas court utilizes that standard de novo); Wiggins,

539 U.S. at 534 (same).

~9h~

1018 (2002), Questions Presented reprinted at 70 U.S.L.W. 3627

(Apr. 9, 2002); Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.),

cert. denied, 531 U.S. 1037 (2000), Questions Presented reprinted

t 69 U.S.L.W. 3368 (Nov. 28, 2000); Newman v. Hopkins, 192 F.3d

1132, 1137 (8th Cir. 1999), vacated and remanded on other grounds,

529 U.S. 1084 (2000), adhered to on remand, 247 F.3d 848 (8th Cir.

2001), cert. denied, 536 U.S. 915 (2002), Questions Presented

reprinted at 68 U.S.L.W. 3617 (Mar. 28, 2000) & 70 U.S.L.W. 3466

(Jan. 22, 2002); Clemmons v. Delo, 124 F.3d 944, 956 (8th Cir.

1997), cert. denied, 523 U.S. 1088 (1998), Questions Presented

reprinted at 66 U.S.L.W. 3533 (Feb. 17, 1998); Sherman v. Smith, 89

F.3d 1134, 1140-41 (4th Cir. 1996) (en banc), vert. denied, 519

U.S. 1091 (1997), Questions Presented reprinted at 65 U.S.L.W. 3373

(Nov. 19, 1996); Starz v. Lockhart, 23 F.3d 1280, 1291 (8th Cir.),

cert. denied, 513 U.S. 995 (1994), Questions Presented reprinted at

63 U.S.L.W. 3330 (Oct. 25, 1994); Orndorff v. Lockhart, 998 F.2d

1426, 1429-30 (8th Cir. 1993), cert. denied, 511 U.S. 1060 (1994),

Questions Presented reprinted at 62 U.S.L.W. 3514 (Feb. 8, 1994).

e supra pp. 19-20 notes 12 & 13.*

A related issue is whether Brecht applies to cases brought

under 28 U.S.C. § 2255, where, almost by definition, harmless-error

analysis has not been applied by any court to the error in question

prior to the filing of the section 2255 motion. Compare United

States v. Montalvo, 331 F.3d 1052, 1057-58 (9th Cir. 2003) (per

curiam) (Brecht applies), cert. denied, 541 U.S. 1011 (2004), Ross

v. United States, 289 F.3d 677, 682 (lith Cir. 2002) (per curiam)

(same), cert. denied, 537 U.S. 1113 (2003), and Murr _v. United

States, 200 F.3d 895, 906 (6th Cir. 2000) (same) with Santana-

Madera v. United States, 260 F.3d 133, 140-41 (2d Cir. 2001) (open

issue in Second Circuit), cert. denied, 534 U.S. 1083 (2002) and

Lanier _v. United States, 220 F.3d 833, 839 (7th Cir.) (applying

beyond-a-reasonable-doubt standard to section 2255 case), cert.

-21-

Finally, this Court should be aware of the existence of the

many arguments that support the choice of the Second and Eighth

Circuits to use AEDPA/Chapman instead of Brecht when the state

court applied Chapman. First, as just indicated, a significant

concern underpinning Brecht was the notion that federal courts

should not duplicate the efforts of state courts in applying

Chapman. See supra p. 20. But that very concern is taken care of

by AEDPA’s section 2254(d) (1). There is no longer any duplication;

rather, there is now deference. E.q., Williams, 529 U.S. at 408

n.*, 411. Indeed, an unnecessary expenditure of effort would arise

if the federal courts not only reviewed the harmless-error

decisions of the state courts for reasonableness under AEDPA, but

then also applied the Brecht standard.

Second, and relatedly, section 2254(d) (1) also takes care of

other concerns expressed in Brecht: finality, comity, and

federalism. See Williams, 529 U.S. at 386 (opinion of Stevens, J.);

Brecht, 507 U.S. at 635, 637. Indeed, the Petition acknowledges

this. (Pet. at 22-23.)

Third, the issue in Brecht was whether the Kotteakos standard

was "better" than the Chapman standard in the habeas context, and

whether it made sense to use a “less onerous" standard than Chapman

in habeas cases. Brecht, 507 U.S. at 623, 637-38. At that time,

there was no AEDPA standard to choose from. But now that there is,

it may well be that the AEDPA/Chapman standard, being "less

denied, 531 U.S. Y30 (2000). This Court declined to resolve the

issue in the Ross case. See 71 U.S.L.W. 3450 (Jan. 7, 2003).

-22-

onerous" than the straight Chapman standard, is the "best" of the

three.

Fourth, this Court in Brecht indicated the need for the

judiciary to fill the gap created by the fact that the habeas

statute contained no harmless-error standard. The Brecht Court

chose the Kotteakos standard, in part because that standard itself

was grounded in the federal harmless-error statute. Brecht, 507

U.S. at 631, 633, 638. But now there,is a harmless-error standard

in the habeas statute: section 2254(d) (1) as applied to Chapman.

See Lonchar v. Thomas, 517 U.S. 314, 323 (1996) (citing Brecht, 507

U.S. at 632-33, notes that it "is normally for Congress" to create

the "legal principles" and engage in the "balancing of objectives"

concerning habeas jurisprudence) .

Fifth, another concern driving Brecht was that the federal

habeas statute had no statute of limitations, and thus grants of

habeas writs, through the erosion of memory and the dispersion of

witnesses, could under®‘ne society’s interest in the fair and

prompt administration of justice. Brecht, 507 U.S. at 637. But

since the passage of AEDPA, the habeas statute has had a very

short, one-year statue of limitations. 28 U.S.C. § 2244(d).

Sixth, there is nothing sacrosanct about using the Brecht

standard in section 2254 cases. For example, this Court employs a

different standard from Brecht (and Chapman) in habeas cases

involving issues of ineffective assistance of counsel or

prosecutorial suppression of exculpatory evidence, and that

standard has survived Brecht. Kyles v. Whitley, 514 U.S. 419, 435-

a 5

36 (1995).

Seventh, and relatedly, since the passage of AEDPA, when the

question of harmless error arises in habeas cases in the context of

claims of ineffective assistance or suppression of exculpatory

evidence, the courts do not use the Brecht standard; rather, the

courts apply AEDPA to the harmless-error standard relevant to such

claims which the state court was required to use. E.g., Holland v.

Jackson, 542 U.S. 649, 124 S. Ct. 2736, 2737-39 (2004) (per

curiam); Woodford, 537 U.S. at 22-27. The same should be true when

the state court is required to apply Chapman.

Finally, as this Court noted in Kyles, "‘It is unnecessaiy tv

add a separate layer of harmless-error analysis to an evaluation of

whether a petitioner in a habeas case has presented a

constitutionally significant claim" by using the Brecht standard

where another standard exists. 514 U.S. at 436 n.9 (quoting Hill v.

Lockhart, 28 F.3d 832, 839 (8th Cir. 1994)). This is particularly

so where the Brecht standard is quite similar to the existing

standard. Id. at 838. Hence, there is no reason to add a Brecht

layer to AEDPA/Chapman, or to supplant AEDPA/Chapman with Brecht.

Accordingly, this Court should not grant certiorari on the

question of whether the Second Circuit was correct in using the

AEDPA/Chapman standard instead of the Brecht standard.

No. 04-1520 snipes

AUG 3 - 2005

. OFFICE OF THE CLERK

IN THE

Supreme Court of the Hnited States

i <i ~~

PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against—

GuyY ZAPPULLA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONER

CHARLES J. HYNES

District Attorney

Kings County

LEONARD JOBLOVE*

VICTOR BARALL

CAMILLE O’HARA GILLESPIE

Assistant District Attorneys

Kings County District Attorney’s Office

350 Jay Street

Brooklyn, New York 11201-2908

(718) 250-2511

August 3, 2005 * Counsel of Record for Petitioner

TABLE OF CONTENTS

PAGE

SABLE OF AUTHORITIES ..... 0. cscs cacceceiovas li

PR RSENS is obo is cabun teens sSinstoeuseraaneoaees ]

il

TABLE OF AUTHORITIES

Cases: PAGE

Allen v. Lee, 366 F.3d 319 (4th Cir.),

cert: denied; 1258. Ct. 208 (2004) 5. nec. 2

Bradley v. Meacham, 918 F.2d 338 (2d Cir.

1990), cert. denied, 501 U.S. 1221 (2004).. 7

Brecht v. Abrahamson, 507 U.S. 619 (1993)..... passim

Calderon v. Coleman, 525 U.S. 141 (1998)...... Te

Chapman vy. California, 386 U.S. 18 (1967) ..... 1, 4-5

Davis v. United States, 512 U.S. 452 (1994)..... 7

Edwards v. Arizona, 451 U.S. 477 (1981)........ 7

Francis §. v. Stone, 221 F.3d 100 (2d Cir.

POI iG oo Sa cag wae ee a a 3

Herrera v. Lemaster, 301 F.3d 1192

(10th Cir. 2002), cert. denied,

SST A ee LEST (2009 ii eee eis 2

Jones v. Polk, 401 F.3d 257 (4th Cir. 2005)...... 4

Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000).... 3

Miranda v. Arizona, 384 U.S. 436 (1966)........ 1, 5-7

Mitchell v. Esparza, 540 U.S. 12 (2003) ......... 3

Turrentine v. Mullin, 390 F.3d 1181

(10th Cir. 2004), cert. denied,

E25 SS. hd, 2S Ce ha Se 4

United States v. Ramirez, 79 F.3d 298 (2d Cir.),

cert. denied, 519 U.S. 850 (1996) ........... 7

United States Statutes:

28 U.S.C. § 2254

REPLY BRIEF FOR PETITIONER

IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

ARGUMENT

In opposing the petition for a writ of certiorari, defen-

dant mischaracterizes the facts in the record relating to

the first question presented in the petition, which is

whether, and under what circumstances, warnings pur-

suant to Miranda vy. Arizona, 384 U.S. 436 (1966), lose

their efficacy because of the passage of time. In addi-

tion, defendant attempts to trivialize the recurring con-

troversy among the federal courts of appeals relating to

the second question raised in the petition, which is

whether Brecht v. Abrahamson, 507 U.S. 619 (1993),

applies to post-AEDPA claims of trial error. However,

defendant fails to show that either of the two questions

raised by the petition is unworthy of the Court’s review.

1. Although defendant attempts to trivialize the debate

over whether the applicable standard of harmless error

is the Brecht standard or an unreasonable application,

under section 2254(d)(1), of Chapman v. California, 386

U.S. 18 (1967), and suggests that the question of which

standard all federal courts should apply before undoing

a state conviction scarcely matters (Brief in Opposition

[“Br. Opp.”] at 16-17), defendant is way off the mark.

First, the issue of which standard federal courts should

apply to habeas review of state convictions matters enor-

mously to all of the states, as well as to all state pris-

oners who seek federal habeas relief, because the

resolution of that issve potentially affects every state

prisoner’s claim of constitutional trial error found harm-

less by the state courts.

2

For the same reason, this issue should matter, and evi-

dently does matter, to the federal judiciary. Defendant’s

opposing brief lists numerous federal cases in which the

issue of the application of Brecht after AEDPA has been

raised, in various permutations, and in which the divided

views of the courts of appeals have been aired and com-

mented upon (Br. Opp. at 22-25 & n.13). Defendant

expressly acknowledges, as he must, that there is a con-

flict in the circuits on the issue (Br. Opp. at 16), despite

his pains to distinguish and minimize this conflict.

The frequency with which the question of the Brecht

standard’s application after AEDPA continues to arise

signals that the question is an important and appropriate

one for this Court’s consideration. A significant body of

decisional law has developed, adding to and informing

the debate about the appropriate standard and rendering

the controversy ripe for the Court’s determination. At

least two of the courts of appeals have now considered

en banc whether the Brecht standard applies after

AEDPA, both holding that Brecht does apply. Herrera v.

Lemaster, 301 F.3d 1192 (10th Cir. 2002) (en banc),

cert. denied, 537 U.S. 1197 (2003); Allen v. Lee, 366

F.3d 319, 321-22 (4th Cir.) (en banc, per curiam), cert.

denied, 125 S. Ct. 208 (2004).

This Court has previously recognized the need for

consistency in the legal standards applied to habeas

review of trial errors. See, e.g., Calderon v. Coleman,

525 U.S. 141, 145-46 (1998) (per curiam) (reversing

Ninth Circuit, where it failed to apply Brecht test before

granting habeas relief). Defendant’s arguments opposing

the State’s petition overlook this Court’s role in achiev-

ing consistency in such standards and preserving the bal-

ance of interests ufiderlying the Brecht decision and the

AEDPA amendments, a balance endangered by the

Second Circuit’s incorrect interpretation of Mitchell v.

Esparza, 540 U.S. 12 (2003) (per curiam).

Prior to AEDPA, the habeas statute itself “sa[id] noth-

ing about the standard for harmless-error review in

habeas cases.” Brecht, 507 U.S. at 631. Although defen-

dant asserts that the habeas statute, as amended by

AEDPA, itself now supplies the harmless error standard

for trial error in habeas cases (Br. Opp. at 27-28), that

assertion is highly debatable, and given the conflict in

the circuits, the Court is now the proper forum for that

debate. “In the absence of any express statutory guid-

ance from Congress, it remains for this Court to deter-

mine what harmless-error standard applies on collateral

review....” Brecht, 507 U.S. at 633.

Contrary to defendant's arguments, the circumstances

of the present case make the question of whether Brecht

remains applicable after AEDPA particularly well-suited

for the Court’s review at this time. First, whether or not

Brecht is applied in this case apparently makes a differ-

ence in the outcome. The district court applied Brecht and

denied habeas relief, but the Second Circuit, without

applying Brecht, granted habeas relief. Moreover, the

Second Circuit, describing AEDPA’s unreasonable appli-

cation standard in section 2254(d)(1) as “somewhere

between ‘merely erroneous and unreasonable to all rea-

sonable jurists,’ ” has stated that the increment of incor-

rectness beyond error required before granting habeas

relief to a state prisoner “ ‘need not be great.’ ” Jones v.

Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (quoting

Francis §. v. Stone, 221 F.3d 100, 109, 111 [2d Cir.

2000]). Thus, the Second Circuit apparently does not

read the unreasonable application standard to require

substantial deference to a state court’s determination that

a constitutional error was harmless.

4

The fact that only two of the three judges on the

Second Circuit panel agreed that habeas relief should be

granted for defendant’s claim and that the third judge

dissented, concluding that there was “overwhelming”

evidence of defendant’s guilt (App. at 28a, 54a), further

demonstrates that a difference in the standard used could

tip the balance the other way. See, e.g., Jones v. Polk,

40] F.3d 257 (4th Cir. 2005) (holding that state court’s

harmless error determination was unreasonable appli-

cation of Chapman, but that error was harmless under

Brecht); Turrentine v. Mullin, 390 F.3d 1181, 1190-91

(10th Cir. 2004) (although state court determination of

harmless error in jury instruction was “contrary to

clearly established federal law,” habeas claim based on

instruction was rejected, because error was harmless

under Brecht), cert. denied, 125 S. Ct. 2544 (2005).

Moreover, although this is not the first time that the

question of whether the Brecht standard still applies

after AEDPA has been raised in a petition for a writ of

certiorari, this does appear to be the first case in which

a court of appeals has refused to apply the Brecht stan-

dard before granting a state prisoner habeas relief on a

post-AEDPA claim of constitutional tria] error that the

state court found harmless under the Chapman standard.

None of the cases cited by defendant (Br. Opp. at 22-25)

featured such a scenario. Thus, the facts and the posture

of this case place the Brecht issue in sharp focus for the

Court's examination.

In addition, by taking up the question of the applica-

tion of Brecht in this case, this Court may well resolve

uncertainty about the application of Brecht to cases in

which the state court did not expressly undertake harm-

less error analysis under Chapman. If the Court ulti-

mately agrees with the State that habeas relief for trial

error should not be granted unless the error is harmful

5

under Brecht, notwithstanding a conclusion by the fed-

eral court that the state court’s harmless error determi-

nation involved an unreasonable application of Chapman,

then such a holding by this Court could effectively resolve

the question of Brecht’s applicability for most, if not all,

post-AEDPA claims of trial error, for it would make lit-

tle sense to say that Brecht applies when the state court’s

harmless error determination involved an unreasonable

application of the Court's precedents, but not when the

state court rejected the prisoner’s federal constitutional

claim on the merits and thus had no occasion to make a

harmless error determination.

Finally, even if the number of cases in which the harm-

less error standard determined the outcome were few, the

social costs of retrial are significant, and the State “‘is not

to be put to this arduous task based on mere speculation

that the defendant was prejudiced by trial error.”

Calderon, 525 U.S. at 146; see Brecht, 507 U.S. at 637.

As Judge Raggi pointed out in her dissent in this case,

the cost of retrial is “borne not only by the state, but by

victims, witnesses, the judicial system, and society

itself,” and should not be underestimated (App. at 54a).

2. In connection with the Miranda question, defendant

misrepresents the state suppression hearing record when

he asserts that after defendant was given Miranda warn-

ings, defendant “told the police that he did not wish to

answer any questions about the theft, as he did not want

to go to jail” (Br. Opp. at 2) and “he specifically told the

police that he did not wish to make a statement about the

alleged theft for which he was arrested” (Br. Opp. at 10).

Contrary to defendant’s assertion, the hearing record

contains no such statement by defendant. Although the

record shows that in the interview of March 17, 1998,

after Miranda warnings were given, defendant did not

talk about the theft and burglary that the detective was

6

interested in investigating, the record does not contain

any statement by defendant to the police saying that he

did not wish to speak about the theft or otherwise

expressing an invocation of his right to remain silent.

The record shows that defendant agreed to speak with

Detective Delahunt after Detective Delahunt adminis-

tered Miranda warnings (Delahunt: H. 41-43).' Defen-

dant said to Detective Delahunt that he could not go to

jail, that he was a mob informant, that he at one time had

been in a witness protection program, and that he could

not go to jail because he would be killed in jail

(Delahunt: H. 43). Defendant volunteered to Detective

Delahunt that he knew all the dealers in the precinct and

that he could make drug buys of any drugs that Detective

Delahunt wanted, in order to stay out of jail (Delahunt:

H. 43-44). Detective Delahunt told defendant that he

could not help defendant in that manner because there

was a special unit that dealt with drugs, but he said he

would try to get in touch with that unit (Delahunt: H. 44).

Detective Delahunt made several telephone calls to have

detectives from one of the special narcotics units come

over, but no one was available (Delahunt: H. 45-46).

Detective Delahunt also told defendant that he was inves-

tigating the theft of Margaret Tarulli’s fur coat and jew-

elry, but they never talked about that incident (Delahunt:

H. 44-45). Defendant “just wanted to talk to someone

who could keep him out of jail” (Delahunt: H. 44-45).

Thus, defendant talked freely about matters other than

the burglary and theft, and the fact that defendant did not

say anything to Detective Delahunt about the burglary

and theft does not mean that defendant invoked his right

to remain silent.

Numbers in parentheses preceded by “H.” refer to pages of

the suppression hearing transcript; names preceding page numbers

identify the witnesses whose testimony is cited.

7

Defendant also quotes hearing testimony out of con-

text to suggest that he invoked his right to counsel (Br.

Opp. at 3), and fails to acknowledge that defendant

immediately made clear, without any questioning from

the police, that he had not invoked his right to an attor-

ney but rather was asking to have a district attorney pre-

sent, because he wanied a written guarantee of the death

penalty (Delahunt: H. 59-60; McMahon: H. 95-96,

100-02).

Defendant suggests that questions concerning his

alleged invocation of his right to silence and his right to

an attorney render the Miranda question presented by

the petition unsuitable for review (Br. Opp. at 14), but

that suggestion is unjustified. The Appellate Division

articulated its reasons for finding that defendant's con-

fession to the police shoula u. ~~ been suppressed (App.

at 77a-78a), but the Appellate Division did not give as

one of those reasons that defendant had invoked either

his right to remain silent or his right to counsel. Fur-

thermore, nothing in the precedents of this Court or even

those of the Second Circuit would have required the

Appellate Division to find that defendant had invoked

his right to remain silent or his right to counsel. See

Davis v. United States, 512 U.S. 452, 459-61 (1994);

Edwards vy. Arizona, 451 U.S. 477 (1981); United States

v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) (defendant

did not invoke right to remain silent, where he neither

remained entirely silent nor stated that he wished to be

asked no further questions), cert. denied, 519 U'.S. 850

(1996); Bradley v. Meacham, 918 F.2d 338, 342 (2d Cir.

1990) (finding no invocation of right to remain silent,

where defendant initially stated that he did not wish to

discuss involvement in crime but immediately denied

any connection to robbery and proffered explanation of

his whereabouts at time of crime), cert. denied, 501 U.S.

1221 (1991).

8

In addition, defendant misrepresents the timing and

sequence of events to suggest that the police caused

defendant’s visit to the hospital to be cut short so that the

police could question defendant. Defendant asserts that

at 12:30 a.m., after returning to the precinct following

the discovery of Scarpati’s body, the police learned that

defendant was still at the hospital and “had him brought

back to the stationhouse for the questioning at 1:15 a.m.”

(Br. Opp. 2-3). But the record shows that when Detective

Delahunt returned to the precinct after discovering the

body, defendant was not at the hospital; rather, defendant

was present at the precinct when Detective Delahunt

arrived there at about 12:30 a.m. (Delahunt: H. 68, 128,

135). Nor is there any indication that the police caused

defendant’s hospital visit to be curtailed so that they

could speak to him. After the discovery of Scarpati’s body

at about 6:00 p.m., the police simply arranged for defen-

dant to be returned from the hospital to the precinct

instead of to Central Booking (Delahunt: H. 127-28, 133-

35). Thus, defendant’s assertion that the police “had him

removed from the hospital around 1:00 a.m. so that they

could speak to him” (Br. Opp. at 12) is wrong and mis-

leading.

Moreover, although defendant tries to make much of

the fact that defendant was taken to the hospital after his

brief escape and was therefore not continuously in a

“police custodial environment” (Br. Opp. at 12), there is

no question that it was the police who took defendant to

the hospital, and that while defendant was in the hospi-

tal, he remained in police custody (Delahunt: H. 127).

Thus, the only break in custody occurred when defen-

dant escaped from the police momentarily when he was

being escorted to Central Booking.