ON APPEAL FROM ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Biggs, Van Dusen and Rosenn, Circuit Judges.
This appeal is from a judgment denying habeas corpus brought pursuant to 28 U.S.C. § 2241. The appellant Foye contends that the district court erred in three respects. First, Foye argues that the district judge incorrectly placed the burden of proof on him at an evidentiary hearing held to determine whether or not there had been tortious police interference with his access and communication with counsel. Foye also asserts that the district court erred in holding that the confession introduced at his state criminal trial was given voluntarily. Last, Foye argues that his questioning by officers of the Police Department of Jersey City, New Jersey, was in violation of his Miranda rights.*fn1 He asserts that this allegedly illegal questioning led to his confession and therefore was "tainted" and not admissible. We disagree with the appellant's contentions for the reasons stated hereinafter and we will affirm the judgment of the district court.
Foye was convicted of murder on December 15, 1970. His conviction was affirmed by the Appellate Division of New Jersey Superior Court in a per curiam opinion. State v. Foye, 125 N.J. Super. 184, 309 A.2d 900 (App. Div.), aff'd per curiam, 63 N.J. 534, 309 A.2d 897 (1973). The opinion of the Appellate Division adequately summarizes the factual background and we need add but few additional facts.
On February 24, 1970, approximately between 4:00 P.M. and 4:30 P.M., Foye was arrested for possession of a dangerous weapon by Detective Morello, an officer of the Jersey City Police Department, although at that time admittedly he was suspected by the police of the murder of Wanda Edwards. At the time of his arrest Foye was not informed that he was suspected of the murder. At approximately 5:30 P.M., at the First Precinct Police Station, Foye was read his Miranda rights respecting the weapons charge. After Foye was given his Miranda warnings, he indicated that he did not wish to make a statement to the police and desired to consult with his attorney. He was overheard calling his wife and instructing her to locate and get in touch with his attorney, Seymour Goldstaub, Esquire. As previously indicated there is controversy with respect to Goldstaub's attempts to locate his client and possible police interference with his efforts. Judge Lacey held a separate evidentiary hearing in regard to this matter and this will be discussed at a later point in this opinion. After Foye called his wife and asked her to contact his attorney, Sergeant Borseso asked Foye whether he knew the dead girl, Wanda Edwards. Sergeant Borseso did not give Foye any Miranda warnings at this time. At this point, Foye stated that if the police believed he had any part in the murder of Edwards he would take a polygraphic examination. Foye was taken to police headquarters at approximately 6:00 P.M. for a polygraph examination. However, after being advised of his rights, he declined to take the examination and was returned to the First Precinct. Approximately an hour later, Foye volunteered to take a polygraph examination. He was advised of his Miranda rights in respect to the murder, and refused to take the examination. Approximately less than one hour later, after being returned to the First Precinct for a second time Foye asked to take an examination. He was once again transported to headquarters and given his rights. This time he took the polygraph examination. The results of the examination were inconclusive.
At 9:15 P.M. Foye was charged with the murder of Wanda Edwards and was held at the First Precinct Police Station. He was once again advised of his Miranda rights and refused to give any statement, indicating that he wished to speak to his attorney. The police did not question him and Foye did not attempt to telephone his attorney. From 9:15 P.M. until 11:00 P.M., Foye was held at the First Precinct Police Station. At some point, Foye was shackled to a bench or chair, but at 11:00 P.M., he was given sandwiches and coffee and was free of restraints. He volunteered to make a statement. He was read his Miranda rights once again. He said he did not want a lawyer, and thereafter made a statement implicating John Turner, but said nothing implicating himself.
Turner was arrested and brought to the First Precinct at 3:00 A.M. on February 25, 1970. At 4:45 A.M., after a confrontation with Turner, Foye said that he did not desire his counsel to be present and then gave an inculpatory statement which was introduced at his trial over his objections.
Foye first argues that the district court erred in determining the burden of proof. In an unpublished opinion the learned trial judge stated that in regard to Foye's allegations of police interference with his attorney's attempts to contact him: "I find . . . that the alleged deceit and trickery on part of the police and concomitant interference with petitioner's counsel has not been proved."*fn2 Foye contends that, since there was no finding of fact by the state courts on the issue of credibility between Sergeant Borseso's and Attorney Goldstaub's versions of the events on the evening of February 24, 1970, in the light of Judge Gibbons' opinion in United States ex rel. Smith v. Yeager, 336 F. Supp. 1287 (D.N.J.), aff'd per curiam, 451 F.2d 164 (3d Cir.), cert. denied, 404 U.S. 859, 92 S. Ct. 112, 30 L. Ed. 2d 101 (1971), the burden of proof rests upon the state.
We believe that Foye urges too broad a reading of Judge Gibbons' opinion. Judge Lacey ordered a section 2254 evidentiary hearing because "the trial judge's findings included neither an explicit evaluation of this conflicting testimony nor findings of credibility."*fn3 The opinion of the Supreme Court in LaVallee v. Delle Rose, 410 U.S. 690, 693-695, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973), disposes of Foye's contentions. In LaVallee, the Supreme Court stated:
"The trial court's summary of the State's evidence tended to show that although respondent had been taken to the station house about 5 p.m. on the day of the murder, he was not even a suspect as late as 9 p.m., and he was only giving information. He was taken to the morgue at his own request, a factor which triggered the first confession. Further, he had been allowed to sit with his family, was given coffee by his mother-in-law and police, and he admitted that his treatment by the police was good during the time of the questioning. There was also testimony that he had been offered food, but as he admitted, he was not hungry. Again at the ' Huntley ' hearing, he acknowledged that the police had treated him 'nice.' It was 'on this evidence' that the state trial court made its finding and conclusion that the confessions were voluntary.
The Court of Appeals stated that it could not tell whether the state courts 'credited Delle Rose's story of the circumstances surrounding his confessions but still held these to have been voluntary, a conclusion to which we could not agree or based their holding of voluntariness on a partial or complete rejection of his testimony, in which event the district judge would have been bound to deny the petition.' 468 F.2d 1288, 1290. In Townsend v. Sain, 372 U.S. 293, 314-315, [9 L. Ed. 2d 770, 83 S. Ct. 745] (1963), the precursor ...