Eddie M. Harrison v. United States of America, Orson G. White v. United States of America, Joseph R. Sampson v. United States

359 F.2d 214, 123 U.S. App. D.C. 230, 1965 U.S. App. LEXIS 3740

Opinions

PER CURIAM:

These appeals from judgments of conviction in the District Court came on to be heard before a division of the court consisting of Senior Circuit Judge Wilbur K. Miller and Circuit Judges Washington and Danaher. The opinions of the respective members of that division require reversal of the convictions, and the order of this court in that result is unanimous.

The issue discussed in part III, C of Judge Danaher’s opinion, was made the subject of a rehearing en banc. On June 1, 1965, the court entered the following order with respect to Harrison v. United States, No. 17991:

Order

It is Ordered sua sponte by the court en bane that the above-entitled case shall be reheard by the court en bane on Tuesday, June 15, 1965. The rehearing shall be limited to the issue of the admissibility of the oral admissions of Harrison made at the District of Columbia Jail on March 21, 1960. Cf. Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (en banc, 1961).

Per Curiam

Dated: June 1, 1965

Although a majority of the sitting division would have considered that Harrison’s oral statements as mentioned in the order might have been received in evidence at a new trial, a majority of the court en banc has ruled otherwise as more fully appears in the opinions that follow.

The convictions are reversed.

So ordered.

Dated: December 7, 1965

The opinions of the judges of the original division follow.

Before Wilbur K. Miller, Senior Circuit Judge, and Washington

Footnotes

•

* and Danaher, Circuit Judges.

DANAHER, Circuit Judge:

An indictment filed April 19, 1960 charged the appellants with murder in the first degree, the first count alleging premeditated murder, and the second charging that on or about March 8, 1960, they murdered one George H. Brown “by means of shooting him with a shotgun, while attempting to perpetrate the crime of robbery.” The first count was dismissed. The jury on May 8, 1963 found all three appellants guilty of “felony-murder” and recommended life imprisonment for each.¹

About 9 A.M. on March 8, 1960, the victim Brown, a gambler, answered a knock at the front door of his house at 1713 Fourth Street, N.W., here in the District. He was met by a blast from a sawed-off shotgun which Harrison had concealed under his trench coat. The gunshot minutely fractured Brown’s face on the right side, destroyed the right eyeball and macerated his brain. Brown’s body fell against the front door.² White and Harrison who had gone to Brown’s house intending to rob him, thereupon turned and ran to a waiting get-away car driven by Sampson. The three men then escaped. Additional facts will be interpolated as we turn to the grounds upon which appellate relief is sought.

I

The appellants were first convicted on October 19, 1960, and on April 21, 1961 had been sentenced to déath by electrocution while represented by an impostor, one Daniel Jackson Oliver Wendel Holmes Morgan.³ The appellants now assert that they were twice placed in jeopardy since this court, sua sponte, and over objections by the appellants had ordered a second trial. We do not agree, for in legal effect the so-called “first” trial was a nullity, as will be realized from our noting the bizarre circumstances which impelled our order.

Morgan was not an attorney, but an ex-convict who had taken the name of an absentee attorney, L. A. Harris, who was in fact a member of the bar. Morgan, alias Harris, had purported to represent White and Sampson throughout the first “trial” in September and October, 1960. Harrison then was represented by an attorney who later died whereupon Morgan undertook also to represent Harrison. After the judgment of conviction and sentence, an appeal for all three accused had been brought to this court. While that “appeal” was pending, the Morgan masquerade was discovered. When informed of such facts, and completely satisfied that the appellants had been denied their right to the effective assistance of counsel, we remanded the case to the District Court that it might entertain a motion for a new trial.

But new counsel then representing the appellants refused to move for a new trial, undoubtedly on the assumption that a double” jeopardy plea might survive the procedural impasse. This court thereupon declined to further any such stratagem; .we directed that the judgments of conviction be vacated. We had concluded under all the circumstances that' there was a manifest necessity for our action lest the ends of public justice be defeated.⁴ Surely these accused in a capital case were entitled to a “full defense by counsel learned'in the law,”⁵ rather than to representation by Morgan. Granting that “[e]ach case must turn on its facts,”⁶ we found the reasons here “compelling”⁷ for the action we directed.

The Government then went forward with the trial leading to the convictions now under review. The plea of former jeopardy must fail.

II

Appellants contend they were denied their right to a speedy trial. Following their first appeal, they could have been tried in the Fall of 1961 if they had followed this court’s original suggestion that they move for a new trial. They refused to do so, and as noted, supra, this court, sua sponte, was obliged to reinstate the appeals and, on June 12, 1962, to enter an order vacating the original judgments of conviction. That order was filed in the District Court July 3, 1962. The District Court then assigned the case for trial on October 17, 1962. By that date there had been hearings on motions of various court-appointed counsel for leave to withdraw; Harrison had no attorney; Attorney David, appointed October 30, 1962, thereafter sought a continuance contending that he had no transcript of the first trial; Harrison then moved that Attorney David be discharged; motions to dismiss on double jeopardy grounds had been filed and argued; in short, on one basis or other, the District Court was occupied with a series of defense motions, some purportedly of substance, some procedural, but all contributing to delay.

The unique problems stemming in the first place from Sampson’s and White’s having engaged the impostor Morgan gave rise to the several dilatory moves. No prejudice in fact was shown. Nor were the “circumstances” such as to deprive the appellants of constitutional rights.⁸

III

Our next inquiry involves inculpatory statements attributed to the respective appellants. We may first set forth briefly the evidence at hand as of the day of the crime.

Across from Brown’s house on March 8, 1960 lived a Mrs. McCoy. Between 9 and 9:30 A.M., she heard “this loud noise go off” and ran into the street. She saw “two boys coming out” of Brown’s house, and one of them “put something under his coat, a gun.”

One Thomas Young had breakfast that morning at Keys’ Restaurant. He sat in a booth with Brown until both left the restaurant about 9 o’clock. Then Brown entered his car. In the restaurant Young had seen a man⁹ who was looking at him and Brown. He noticed that the man came from the restaurant as Young and Brown left the premises. He saw that man get into a black Buick car parked near the restaurant. Two other people were in the car. Within a short time Young learned of the attack upon Brown and called the police.

Such was the scanty evidence known to the police shortly after their gaining access to Brown’s house and their discovery of his body wedged against the front door. Police investigation went forward immediately.

Later that same day officers questioned these appellants concerning their possible connection with the crime. As the police sought information from Harrison, he told an officer his name and his address, and then added “I don’t have to tell you anything else, you can go to hell.” All three appellants then denied knowledge of the killing. After having been detained overnight, all three appellants were released.

A.

Some time in the afternoon of March 20, 1960, police went to Sampson’s house looking for him but he was not there. About 6 P.M., Sampson telephoned to Headquarters and stated to Captain Daly that he understood the police had been looking for him and that he was then at home. Two officers were sent for him. They handcuffed Sampson and brought him to Headquarters. Questioned by Captain Daly, Sampson, commencing about 6 P.M., supplied answers which implicated White and Harrison but which likewise tended to exculpate himself. While Captain Daly was typing up a report of what Sampson had said, White was brought in and was told what Sampson had first said.

White replied “If that is what Sampson said, it is not true, you better talk to him some more.” Throughout the evening of March 20, 1960 the questioning of White and Sampson proceeded until, commencing at about 10:30 P.M., Sampson orally submitted an amended version of the part he had played in the crime. Typing of his inculpatory statement commenced around 10:45 P.M. and was completed shortly before midnight. Sampson ultimately was booked at 1:30 A.M. on March 21, 1960. Asked if it was his “purpose in questioning Sampson” to obtain admissions relating to the crime, Captain Daly answered “Yes.”

In like manner White at about 10:30 P.M. commenced a statement, the typing of which was completed by Detective Pixton around 11:45 P.M. Thereafter White accompanied the officers to premises at 1511 Newton Street, N.E. as police sought to locate the shotgun which White stated had been put down an incinerator. The gun was not found, for the incinerator had been cleaned out before police reached the spot. White was booked at about 1:29 A.M. on the morning of March 21, 1960.

Not until later in the forenoon of March 21, 1960 were White and Sampson brought before the United States Commissioner.

At the trial the confessions by Sampson and White were received in evidence. The rule laid down in Mallory v. United States¹⁰ has been deemed in some situations not to require exclusion of a voluntary confession forthcoming in the course of an essential investigation.¹¹ Had Sampson’s presence and participation been voluntary, “it is well established that the Mallory rule is inapplicable.”¹² But in light of various rulings which derived from the particular circumstances of yet other cases, the Government in this court conceded on brief that Sampson’s confession should not have been received because of “the length of the interrogation that preceded the incriminating statements.” We think because of the record here presented the same is true of White’s confession. Under control of the police throughout the evening of March 20, 1960, he had been detained at Headquarters while being questioned; he was then after confessing taken out to where the gun had been disposed of, and was not finally booked until about 1:29 A.M. on the 21st. We think the situation as to White is clearly analogous to that disclosed in Seals v. United States,¹³ and hence his confession also should have been excluded.

B.

Additionally, the Government offered in evidence statements taken from Sampson and White by jail classification officers. At one time this court had thought that such statements might be received in evidence.¹⁴ But a division of this court (one judge dissenting) has latterly held otherwise in Killough v. United States.¹⁵ We deem ourselves bound to follow that ruling.¹⁶

It follows that the convictions of Sampson and White must be reversed on the ground that their confessions to the police and their statements to the jail classification officers should not have been received in evidence.

C.

A different situation is presented with respect to Harrison’s oral admissions at the jail and his later written confession. He was not present at Headquarters when Sampson and White confessed. He was already in jail on March 21,1960 under circumstances we may next describe. On March 19, 1960, one Edith E. Penn swore to a complaint in the Court of General Sessions where she charged Harrison with breaking and entering her apartment on March 18, 1960 and with the theft of $32 and various articles of personal property. Harrison waived hearing, and bail was fixed at $5,000. He was committed to jail to await grand jury action and was later indicted in Criminal No. 364-60. Also on March 19, 1960, Harrison had been convicted and sentenced to jail on three traffic charges growing out of violations on March 18, 1960. He had become 18 years of age on March 18, 1960 so that in neither of the foregoing cases had he been charged in the Juvenile Court, nor had he been charged with the Brown homicide in any court. Thus his incarceration on March 19, 1960 and over the subsequent period so. far as is here relevant, was in no way related to the crimes involved in the instant case.

The record shows that about 7:30 A.M. on March 21,1960, Captain Daly and two detectives brought Sampson and White to the jail. They filled out a visitor’s re quest form seeking Harrison’s consent to an interview and he agreed. Harrison then was brought by a jail attendant to the rotunda where the police told Harrison that Sampson and White had been charged with the murder of Brown, that they had told the complete story to the officers and had implicated him. Harrison asked: “Well, what did they tell you ?”

Thereupon, addressing Harrison, Sampson told Harrison what he had said to the police. Likewise, White told Harrison what had been said in his statement and the part “that he said Harrison had played.” Harrison then stated that what Sampson and White had said was true; “that he had fired the gun through the window; at the time he fired it White was standing on the steps behind him.” The officer then asked Harrison “if he wanted to make a complete statement as to the part he did play in this robbery and homicide and he said yes, that he would.” Thereupon, Harrison narrated the development of the plan to rob Brown, the steps taken to effectuate that plan, and his arrangement to borrow a car. He told of his carrying a sawed-off shotgun under his coat, and of other particulars involved in his shooting of Brown. He claimed that as Brown had slammed the door in his face, the glass on the door had hit the shotgun which was thus discharged.¹⁷ We need not supply other details. Harrison’s oral admissions were properly received against him.

In the first place, there has been shown no fact of record even tending to establish that Harrison’s admissions- were not freely and voluntarily forthcoming. The Mallory rule which requires the exclusion of Sampson’s confession and White’s confession from being used in criminal proceedings against them is no bar to their telling Harrison what they had told the police. Here was no set of admissions by Harrison induced by police misrepresentation or fraud.¹⁸ With a jail attendant present at all times, with no coercive questioning by police, with no suggestion of police duress, Harrison knew that the co-accused to his face had told the truth, and thus he offered his version of the crime. From other evidence in the case it is clear that Harrison definitely had on his mind the shooting aspect as distinguished from other phases. He told one Valentine that he had shot “Cider” Brown. He had told one Stevenson that he had gone to Brown’s house to pawn the gun and that “the man slammed the door on the gun and the gun went off.” As Professor Wigmore observed:

“The nervous pressure of guilt is enormous; the load of the deed done is heavy; the fear of detection fills the consciousness; and when detection comes, the pressure is relieved; and the deep sense of relief makes confession a satisfaction. At that moment, he will tell all, and tell it truly.”¹⁹

In Smith v. United States,²⁰ this court held that the testimony of one Holman, an eyewitness to the crime, might be received in evidence against Smith even though Holman’s identity had been learned during the illegal detention of Smith, as its source. We are satisfied that there was no error in receiving in evidence Harrison’s oral admissions given in the presence of Sampson and White, quite irrespective of the status of their own confessions.

Harrison additionally contends that his oral admissions at the jail were excludable because of our holding in Harling v. United States.²¹ There we were concerned with the admissibility of damaging oral statements made by Harling while in police custody when he was seventeen years old and before the Juvenile Court had waived jurisdiction. He had admitted participation in the robbery after which he was returned to the Receiving Home to await hearing before the Juvenile Court. We observed that under the applicable statutes impairment of the parens patriae function must be avoided. “This requires that admissions by a juvenile in connection with the non-criminal proceeding be excluded from evidence in the criminal proceeding.”²² We later explained that

“The Harling case bars the Government from using against an accused in a criminal trial a confession or admission officially obtained from him when he was a juvenile detained under the auspices of the Juvenile Court, where the latter court has subsequently waived its jurisdiction and transferred the accused for trial to the District Court.”²³ (Emphasis supplied.)

The “special practices” applicable to a juvenile underlay the Harling rilling, we observed, and evidence “directly or indirectly obtained through juvenile procedures”²⁴ became subject to exclusion, depending upon whether the procurement of that evidence was “sufficiently divorced from the juvenile procedures * * *_»²⁵

None of the considerations so outlined can here be discerned.²⁶ Harrison’s statements were not elicited by virtue of the authority of the Juvenile Court or of any of its functionaries. Unlike Harling, Harrison had not in the language of the Code, been “charged with having violated” any law applicable to the Brown homicide, in the Juvenile Court or in any other court. Thus he was not disabled from talking as was Harling. Appellant’s present contention carried to its logical end would have us say that if Harrison had been twenty years and eleven months of age when apprehended, his completely voluntary admissions must be excluded simply because they related to a crime committed when he was only ten days short of his eighteenth birthday. Our Harling decision requires no such absurd result, for neither its rationale nor the circumstances there considered can have application here.

Rather, confronted by his confederates in crime, he spontaneously submitted his own version of the affair. He even sought to exculpate himself to the extent possible and to ascribe the homicide to an accidental cause. Only after he had offered his explanation were the police in position to charge Harrison with the Brown offense. So it was that later on, in the afternoon of March 21, 1960, the homicide complaint was lodged against Harrison. The Harling case has no applicability to the issue before us, as the Edwards case makes clear, and the trial judge did not err in refusing to exclude Harrison’s oral statements at the jail on the morning of March 21, 1960.

D.

A different position must be taken with reference to Harrison’s written confession. Some hours after Harrison’s early morning statements in the presence of Sampson and White, officers returned to the jail without the co-accused. The police then went back over the substance of Harrison’s earlier interview and reduced his statements to writing. His confession so taken should have been excluded.²⁷ Harrison had not been presented before the Commissioner although he readily could have been on the basis of his earlier admissions.

Moreover, as had been the case with respect to Sampson and White, the Government introduced Harrison’s statement to a jail classification officer. That statement likewise was erroneously received.²⁸

IV

Other contentions pressed upon us have been fully considered but we deem them so lacking in substance that further discussion is not required. Prom what has been said it is clear that the convictions of all three appellants must be

Reversed.

Circuit Judge Washington became Senior Circuit Judge on November 10, 1965.

1

. The sentence was authorized by D.C. Code § 22-2404 (Supp. IV, 1965). As to background re the amendment, see Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (en banc, 1963); Coleman v. United States, 118 U.S.App.D.C. 168, 334 F.2d 558 (en banc, 1964).

2

. Police who shortly responded discovered that the front door had become locked, with the body of the “huge” Brown against the door. A large “roll” of money was on his person.

3

. Morgan was later convicted of various offenses more particularly enumerated in our opinion affirming his conviction, Morgan v. United States, 114 U.S.App.D.C. 13, 309 F.2d 234 (1962), cert. denied, 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416 (1963).

4

. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); cf. Scott v. United States, 91 U.S.App.D.C. 232, 202 F.2d 354, cert. denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952) and cases cited.

5

. 18 U.S.O. § 3005 (1958).

6

. Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963).

7

. Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

8

. Smith v. United States, 118 U.S.App.D.C. 38, 331 F.2d 784 (en banc, 1964), and cases therein considered.

9

. Later to be identified as Sampson.

10

. 354 U.S. 449, 77 S.Ct. 1356. 1 L.Ed.2d 1479 (1957).

11

. See, e.g., United States v. Vita, 294 F.2d 524 (2 Cir.1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962); and Scarbeek v. United States, 115 U.S.App.D.C. 135, 152, 317 F.2d 546, 563 (1962), cert. denied, 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077 (1963), and cases there cited.

12

. Scarbeck v. United States, supra note 11.

13

. 117 U.S.App.D.C. 79, 81-82, 325 F.2d 1006, 1008-1009 (1963), cert. denied, 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982 (1964); Cf. Naples v. United States, 113 U.S.App.D.C. 281, 284, 307 F.2d 618, 621 (en banc, 1962).

14

. Tyler v. United States, 90 U.S.App.D.C. 2, 9, 193 F.2d 24, 31 (1951), cert. denied, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326 (1952).

15

. 119 U.S.App.D.C. 10, 336 F.2d 929 (1964).

16

. Harrison’s statement to a jail classification officer is likewise inadmissible, but the circumstances as to Harrison, generally, will be the subject of separate reference, infra, part III, O.

17

. The Government did not contend that the actual discharge of the shotgun was other than accidental but argued, correctly, that even so, that fact was immaterial since the shooting occurred during the perpetration of a felony. Coleman v. United States, 111 U.S.App.D.C. 210, 214, 295 F.2d 555, 559 (en banc, 1961), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962); cf. Wheeler v. United States, 82 U.S.App.D.C. 363, 165 F.2d 225 (1947), cert. denied, 333 U.S. 829, 68 S.Ct. 448, 92 L.Ed. 1115 (1948).

18

. Cf. Hawkins v. United States, 81 U.S. App.D.C. 376, 158 F.2d 652 (1946), cert. denied, 331 U.S. 830, 67 S.Ct. 1347, 91 L.Ed. 1844 (1947). There police had informed the appellant that his relatives were being questioned.

19

. 3 Wigmore, Evidence § 851, at 319 (3d ed. 1940).

20

. 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964); and see Williams v. United States, 272 F.2d 822 (6 Cir. 1959), cert. denied, 364 U.S. 836, 81 S.Ct. 72, 5 L.Ed.2d 61 (1960); cf. Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961).

21

. 111 U.S.App.D.C. 174, 295 F.2d 161 (en banc, 1961).

22

. Id. at 177, 295 F.24 at 164. The Juvenile Court then was deemed to have original and exclusive jurisdiction of all cases and proceedings concerning a person under 21 years of age “charged with having violated any lato” (emphasis supplied) prior to having become 18 years of age. D.C.Code § 11-907 (1961).

23

. Edwards v. United States, 117 U.S.App.D.C. 383, 384, 330 F.2d 849, 850 (1964).

24

. Id. at 385, 330 F.2d at 851.

25

. Ibid.

26

. Here the court was not dealing with a “child.” This man had become 18 years of age on March 18, 1960. He had gone through 11 grades in school. He was a completely wary adult who knew exactly what he was doing. He had told the officers following his arrest on March 8, 1960 that the only information he had to give them was his name and address and that he did not have to tell them anything else; “You can go to hell,” he said. Even when confronted by Sampson and White he asked the officers “Well, what did they tell you?” Having heard from them personally, he went forward with his own version of the episode.

27

. Cf. Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (en banc 1962).

28

. Killough v. United States, supra note 15 and corresponding text, and see note 16 supra.