Collins v. Brierly

492 F.2d 735

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

During the course of an armed robbery in Erie, Pennsylvania on April 27, 1967, one Nicholas Fytikas was shot and killed by Norman Stanyard, an acquaintance of petitioner, Royall Collins, alleged to be the driver of the getaway car. After a jury trial in the Court of Common Pleas of Erie County, Pennsylvania, Collins was convicted of second degree murder, and the judgment was affirmed by the Pennsylvania Supreme Court.¹ During the course of its opinion, that Court held that it had been error to admit a statement of Collins into evidence at his trial but that the ruling of the trial judge had been harmless in view of other evidence in the case.

On a petition for writ of habeas corpus, the United States District Court for the Western District of Pennsylvania found that the “error” had not been harmless, although it accepted the view of the Pennsylvania appellate court that the statement had been secured in violation of petitioner’s constitutional rights.² On this latter point we differ with both the Pennsylvania Supreme Court and the District Court, and we reverse.

The record establishes that Collins and two friends, Carr and Seawright, went to the home of a friend at about 10:00 P.M. on April 26, 1967, where they met Stanyard. Later that evening all four left in petitioner’s automobile. Where they went thereafter is disputed. Collins contended that they took Stan-yard to Eighteenth and Parade Streets in Erie, Pennsylvania and did not see him again that day. The contested statement that the petitioner made to police contained little more than this information.

Stanyard, however, testified that all four first drove to Sixteenth and Parade Streets where he robbed a Spur Gas Station at gunpoint while the others remained in the car. After driving around for about an hour, it was decided by all to rob an establishment called “Steve’s Lunch” located at Sixteenth and State Streets, about four blocks from the gas station. Again Stanyard went into the lunch room alone while the others waited outside. When the proprietor attempted to dive below a counter top, he was shot by Stanyard. The others drove away and Stanyard fled on foot. The shooting occurred about 2:00 A.M., and Stanyard was apprehended a few hours later.³

About 5:00 P.M. on that same day, Detective Kalinowski of the Erie Police force went to petitioner’s residence and found both Collins and Seawright there. They were asked and agreed to accompany the police to headquarters. When they arrived there, Kalinowski told Collins, Seawright, and three other youths that they were going to have a lineup and that the police wanted to see if “this boy can identify some of them . . .” The detective testified that “. . .1 think it was Seawright, he already knew who the boy was because I guess he saw it on T.V. or something.”⁴ After the lineup, Seawright and Collins were taken to separate rooms, and each was interviewed privately. Kalinowski testified at the suppression hearing that he gave petitioner a card on which his “rights” were printed and asked Collins to read it and, if he understood it, to sign it. Colins replied that he did understand it and at the officer’s request signed the form.⁵

Following this, according to the version at the suppression hearing, Kali-nowski told Collins that they wished to talk to him about the “Nicholas Fytikas case and about Stanyard.” At the trial several months later, the detective testified that “before signing that [the waiver form], we told him that we were going to ask him questions regarding the shooting done by Norman Stanyard and then we explained his rights to him

Collins testified at the suppression hearing that at the time he was questioned he had not known that Fytikas had been killed or that Stanyard was involved.⁶

Petitioner did not testify at the evi-dentiary hearing in the district court.

The Court of Common Pleas, in rejecting a motion for a new trial, wrote:

“Counsel also argues that [the statement] is inadmissible because the officers did not advise Collins of the reasons for his detention on question ing until after he was advised of his rights, and until after he signed the waiver. It is our opinion that the sequence is unimportant as long as Collins knew his rights when the questioning began. That this is so is, in our opinion, an established fact.”

The court then discussed the requirements set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and concluded, “We believe that Collins was properly apprised of these matters and that he effectively waived his privilege and that he did so knowingly and intelligently.”

Footnotes

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6a

We understand these statements to be a finding that the officers had in fact advised the petitioner of the reasons for his interrogation. A plurality of the Supreme Court, of Pennsylvania⁷ seemingly made a similar interpretation because its opinion assumed that there was error based on the time when the notice was given, not that it was actually lacking. We acknowledge that the state appellate court’s phraseology is not as precise on this point as might be desired. The court stated:

“We agree with appellant that an intelligent and understanding waiver of the right to counsel is impossible where the defendant has not been informed of the crime which is being investigated.” 259 A.2d 160, 163 (1969).

But the opinion went on to say at 163-164:

“The court below was of the view that so long as appellant knew why he was being held when the questioning began, that is enough. We cannot agree. The crucial moment is the time when the waiver is signed. Once an accused has signed the waiver stating that he is willing to give a statement, .it is no longer efficacious that he then be told what he is being questioned about. The compulsive force of the unintelligent waiver has already had its effect. We thus hold that it was error to admit appellant’s statement.”

We have serious reservations about an interpretation of Miranda v. Arizona, supra, which would require that before custodial interrogation begins, in addition to the mandated declarations, a statement must be made by the police as to the nature of the crime under investigation. That landmark decision was painstakingly specific in listing the basic constitutional rights which the police must propound to a suspect before he is questioned. Nowhere is there the slightest indication that there must be included a warning about the nature of the crime which has led to the interrogation conference, what the penalty is for the offense, what the elements of the offense consist of, and similar matters. That these might be requisites for the entry of a valid guilty plea in open court is not relevant to the standards applicable to the custodial interrogation stage of a prosecution. In a sense, all of these elements might conceivably enter into an “intelligent and understanding” rejection of an offer for the assistance of counsel, but the simple answer is that Miranda does not by its terms go so far. It requires that the accused be advised of his rights so that he may make a rational decision, not necessarily the best one or one that would be reached only after long and painstaking deliberation. Indeed, it may be argued forcefully that a choice by a defendant to forego the presence of counsel at a police interroga tion is almost invariably an unintelligent course of action.⁸ It is not in the sense of shrewdness that Miranda speaks of “intelligent” waiver but rather in the tenor that the individual must know of his available options before deciding what he thinks best suits his particular situation. In this context intelligence is not equated with wisdom. See United States v. Hall, 396 F.2d 841 (4th Cir. 1968), cert. denied, 393 U.S. 918, 89 S.Ct. 248, 21 L.Ed.2d 205 (1968).

It is possible that in some situations the fact that the suspect was not aware of the offense under investigation would be of concern to the court in evaluating the totality of the circumstances to determine the voluntariness of a statement.⁹ This is quite different, however, from a holding that unless the information is included in the pre-inter-rogation litany, a confession is per se inadmissible.

We need not and do not decide this question, however, since our inquiry may be limited to the issue of whether the “waiver” was ineffective because it was signed before the petitioner was advised of the nature of the crime with which the interrogation was concerned. This was the reason assigned by the Pennsylvania appellate court, as we read its plurality opinion, for finding that there had been error of constitutional dimension in the trial court’s ruling. We say again that whether the disclosure was made before or after the “waiver” is a matter of substantial dispute, and any inference to the contrary which might be gathered from the opinion of the state Supreme Court is not justified by a review of the record in the trial court.¹⁰ But assuming, arguen-do, only that Collins was not told about the reason he was to be questioned until after he had signed the document in police headquarters, we conclude nevertheless that the statement was admissible.

The “waiver” which is referred to in the majority opinion in Miranda is explained in the dissent of Justice Harlan as being some type of affirmative statement of rejection of rights. As the Court points out, however, a suspect has the privilege at any time of refusing to answer questions or to continue without the presence of counsel, and hence, the “waiver” has no enforceable effect whatsoever. It may be assumed that its main purpose is evidentiary, to establish with a minimum of difficulty .and a maximum of certainty that the police gave the warnings and that the suspect had agreed — preliminarily—to answer questions. Most police organizations now require that a writing by used. To be precise, however, a “waiver” in its usual sense does not occur until a witness actually answers a question. Only when he takes such an affirmative action does the waiver occur. Anything preceding that step is but a freely revocable statement of intent.

The signing of the “waiver” therefore had no legally compulsive effect; there is no contention or evidence that the police represented it as such, nor anything in the record to establish that it was so understood by petitioner. The mere act of signing, therefore, was not crucial in the context in which it is urged in this case.

We conclude that there was adequate evidence in this case to meet the Commonwealth’s burden of establishing the voluntariness of the confession by a preponderance of the evidence, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), and that therefore the ruling of the state trial judge was not constitutionally erroneous.

One other point raised by the parties on appeal requires some discussion. Collins contends that his state court conviction was also constitutionally flawed because the pretrial identification process in this case was so suggestive that the identification at trial was in violation of due process. Because the lineup identification in this case took place before United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the test of the validity of the identification is whether the confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he [the defendant] was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). We agree with the district court’s determination that Stanyard’s in-court identification had an independent source and could have been based on Stanyard’s prior opportunity to observe Collins during the hours Collins admittedly spent with Stanyard on the evening preceding the murder. While it is true that Stan-yard did not, in fact, immediately identify Collins, this may be only for the reason that Stanyard did not wish to identify him, rather than an inability to identify him. Moreover, we believe that the identification procedure was not so impermissibly suggestive as to deny Collins due process of law under the principle enunciated in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). The other eases relied on by Collins on this point are inapposite.

The order of the district court will be reversed.

1

. Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969).

2

. Collins v. Brierley, 336 F.Supp. 1024 (W. D.Pa.1971).

3

. Stanyard pleaded guilty to murder generally before Collins’ ease was called to trial.

4

. Transcript of suppression hearing at 22. Following an on-the-record colloquy, the following question was then put to the detective by defense counsel:

“Question: So then you do recall then telling Collins that he was being taken to the County Jail to be in a lineup to see if Stanyard could identify him, is that correct?

“Answer: That is correct.”

5

. “BUREAU OF CRIMINAL

INVESTIGATION Erie Police Department Erie, Pennsylvania YOUR RIGHTS

DATE April 27, 1967

TIME 6:12 P. M.

BEFORE WE ASK YOU ANY QUESTIONS, YOU MUST UNDERSTAND YOUR RIGHTS. YOU HAVE THE RIGHT TO REMAIN SILENT. ANYTHING YOU SAY CAN BE USED AGAINST YOU IN COURT. YOU HAVE THE RIGHT TO TALK TO A LAWYER FOR ADVICE BEFORE WE ASK YOU ANY QUESTIONS, AND TO HAVE HIM WITH YOU DURING THE QUESTIONING. YOU HAVE THIS RIGHT TO THE ADVICE AND PRESENCE OF A LAWYER AND IF YOU CANNOT AFFORD TO HIRE ONE, ONE WILL BE APPOINTED FOR YOU. WAIVER

I HAVE READ THE STATEMENT OF MY RIGHTS SHOWN ABOVE. I UNDERSTAND WHAT MY RIGHTS ARE. I AM WILLING TO ANSWER QUESTIONS AND MAKE A STATEMENT. (SIGNED) ROYALL COLLINS

WITNES S PET. SGT. CARL

KALINOWSKI

WITNESS PET. SGT. JOSEPH

MOSOKOWSKI”

The police officer said that in addition to receiving the standard warnings, the defendant was told that “he has the right to nse the telephone any time he wants to.” (Transcript of Suppression Hearing, p. 4)

"We note that this “waiver” does not contain the admonition which is seen in some forms advising that the questioning may be stopped at any time and that the request for an attorney may be made at any time during the interrogation. While this addition would be desirable, its absence did not constitute a violation of the Miranda warning procedures.

6

. The transcript of the suppression hearing also contains the following exchange between petitioner and his counsel:

“Q. And did you understand what they read to you at that time, Royall ?

“A. Well, I would have to say in the way it was set up to be because I thought to be that particular time the part where it says we don’t, cannot get an attorney, we can get the Court to appoint you one, so I figured what did I need with an attorney, so I figured I would have to pay for an attorney, I didn’t have the understanding that the Court would pay for the attorney. That is the part I really didn’t understand about but I said I did understand.

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“Q. Was there any reason why you thought you didn’t need an attorney?

“A. Because I hadn’t did anything, I thought why should I have an attorney.

“Q. You didn’t know—

“A. —what reason, I hadn’t did nothing, I didn’t know what they were holding me for so why should I have an attorney.” at 9-10.

Later under cross-examination, Collins admitted that he was a high school graduate, that he understood what he had read, and that he did understand that he had the right to an attorney. At the time these events occurred, petitioner was 23 years of age, and there was no evidence that he had any physical or mental disabilities.

After the suppression hearings, the state trial judge found specifically that Collins understood the warnings given by the police, that the oral statement was given voluntarily by the defendant and after he had intelligently waived his rights.

. As to the effect of such a finding, see LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).

7

. Three judges of the Collins court joined in the opinion; four concurred without expression of views. Although the Pennsylvania Supreme Court questioned the precedential value of the Collins case on the issue in point here in Commonwealth v. Cooper, 444 Pa. 122, 278 A.2d 895 (1971), that opinion was subsequently withdrawn, and a revised opinion which omitted the commentary on the need to specifically inform an accused of the exact crime was substituted at 297 A.2d 108 (1971). See the later cases of Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972), and Commonwealth v. McIntyre, 451 Pa. 42, 301 A.2d 832 (1973).

8

. See Kuh, Interrogation of Criminal Defendants — Some Views on Miranda v. Arizona, 35 Fordham L.Rev. 169, 234 (1966).

9

. See Waiver of Miranda Rights, 36 U.Chi. L.Rev. 413, 432 (1969).

In federal prosecutions, 18 U.S.C. § 3501(b) provides that in determining the issue of voluntariness of a confession, the trial judge shall take into consideration among other factors “. . . whether such defendant knew the nature of the offense . . . ” However, the presence or absence of any of the factors listed in the statute need not be conclusive on the issue.

10

. The trial court made no specific finding of fact on whether petitioner was informed by the police before or after signing the “waiver” or if he knew from other sources that Fytikas had been shot and that Stanyard was involved. There was however sufficient evidence from which the Court of Common Pleas could have concluded that Collins knew the reason for the investigation before he signed the form.