John W. Jackson, Jr. v. United States

337 F.2d 136

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 8, 1964
• Docket: 17746_1
• Status: Published

Opinions

DANAHER, Circuit Judge.

This appeal¹ attacks Jackson’s conviction of housebreaking, second degree murder and two counts of felony-murder. The jury recommended life imprisonment on the latter counts. Principally the appellant contends that the District Court erred in receiving the appellant’s confession.

In the early morning hours of September 6, 1961, a police officer discovered an open door at a laundry in northwest Washington. His investigation led to the discovery of the prone body of Tony Philip Lee who died en route to a hospital. He had suffered skull fractures, eleven broken ribs and lacerations about the face and head. A medical expert gave as his opinion that death had followed from blows administered by a wrench found at the scene of the killing. Both Lee and the appellant had worked at the laundry. The owner, called to the scene, discovered that a “Coke” machine on the premises had been broken into, the cash register had been opened and emptied, and his tools had been brought up from the basement.

Appellant’s cousin, one Pearson, testified that a few days before the attack, the appellant had asked him to join in the breaking and entering of the laundry, but Pearson refused. Appellant had told him “he was going up to the laundry and break in and get some money.” On the night of September 5, 1961, the appellant had called Pearson and asked him to meet the appellant at a gasoline station. When he arrived there, Pearson traded shoes with the appellant for there were blood stains on the appellant’s shoes. He told Pearson that “he did it” because Lee had recognized him; that he would never come back; that he had hit the man and blood had flowed, and he might have hit Lee too hard. Pearson at the time observed a laundry bag full of coins in the back part of the appellant’s automobile. The appellant’s fingerprint was found on an interior portion of the Coke machine which could not have been accessible except to one who had broken into the equipment. Other evidence disclosed that appellant was seen driving to New York on September 6,1961, and that he had picked up a passenger near Baltimore whom he told that “he had broken into a place” in Washington.

On September 8, 1961, the United States Commissioner issued a warrant for the arrest of the appellant on a felony-murder charge. On September 15, 1961, at 3:20 A.M., an agent of the F.B.I. arrested the appellant at Staten Island, New York. The F.B.I. agent immediately advised the appellant “that he did not have to make any statement, that any statement he did make would be used against him in a court of law, and that he was entitled to an attorney.” Transported then to the Federal House of Detention in Manhattan, the appellant was presented by another F.B.I. agent before a United States Commissioner at about 11 A.M. The Commissioner informed the appellant of the charges against him and advised him “that he did not have to say anything if he did not desire to, that he could have an attorney if he so desired.” A removal complaint was prepared, and the Metropolitan Police in the District of Columbia were notified.

Officers Weber and Moriarty arrived in New York from Washington about 1:30 P.M. on September 16. The appellant consented to see the officers who advised him that he did not have to speak to them. The testimony shows that “he sat there for a few minutes and then said he would like to tell us about it.” The appellant then narrated to the officers how he had broken into the laundry, procured tools from the boiler room, and how he then broke into the Coke machine and took all the money from the change holder.

Armed with a wrench, he listened outside of Lee’s door in an effort to determine whether he had been awakened. Lee appeared and grabbed the appellant. The latter kept hitting Lee with the “monkey wrench” until he stopped fighting. Making his way from the laundry, the appellant called Pearson and told him what he had done. Other particulars need not be supplied except that while confessing, the appellant took a sheet of paper and drew a detailed diagram of the laundry premises and how he had gained access thereto.

Defense counsel moved to suppress “any and all confessions and admissions written or oral obtained by the United States since the date of his arrest and presentation to a committing magistrate.” As grounds for the motion, appellant claimed that the confessions and admissions were elicited from him “involuntarily” in violation of the Fifth Amendment and of the appellant’s right to counsel under the Sixth Amendment.

Appellant argues that the police officers may not testify to a voluntary confession given by one in lawful custody without an attorney, although the accused had been advised of his rights. The agents of the F.B.I., the United States Commissioner, and finally, the Metropolitan Police, had advised the appellant of his rights in language substantially as set forth in Rule 5 as incorporated -into Rule 40(b) (2) of the Federal Rules of Criminal Procedure. This court has expressly held that the Sixth Amendment does not require that counsel be appointed at the preliminary hearing.²

A prisoner without counsel, but fully advised of his Rule 5 rights at a hearing, thereafter confessed to committing a robbery in Moon v. United States,³ where we said “Certainly, in view of the admitted fact that the Commissioner did exactly what Rule 5(b) required him to do, we cannot say that there was ‘plain error’ under Fed.R.Crim.P. 52(b).” Thus we refused to consider as possible error the failure to assign counsel in the preliminary proceedings before the Commissioner since the point had not been raised in the District Court.

In the instant case, the failure of the Commissioner in New York to appoint counsel was urged upon the District Court as a bar to receipt of the confession. Appellant has argued to us that White v. Maryland⁴ requires reversal. In the White case the accused, not represented by an attorney, entered a plea of guilty at a preliminary hearing. That plea was received in evidence at the trial. This court, long since, had held in Wood v. United States⁵ that an uncounseled plea of guilty at a preliminary hearing is not to be received in evidence at trial. Mr. Justice Rutledge there said:

“The fairer practice and, we think, the only one consistent with the court’s position, would advise the accused in all cases, before permitting him to speak even as a volunteer, of his right to counsel and would warn him that he need not speak and, if he does, it is at his peril. This would assure fairness to the accused and foreclose the possibility that he might act in ignorance.” ⁶

In the instant case, of course, the appellant had been warned not only by the F.B.I. agents and by the officers, but by the Commissioner himself.

In the present case there was no evidence whatever that the appellant, thrice warned, had in fact been coerced into a confession of a brutal murder. The Supreme Court in Malloy v. Hogan ⁷ reiterated the long proclaimed standard to be applied “wherever a question arises whether a confession is incompetent because not voluntary * * The confession must be “ ‘free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * ” In other words the person must not have been compelled to incriminate himself.” (Emphasis added.) The confession here fully met that standard: it was voluntarily given; he was in no way compelled.

Thus we pass to the Sixth Amendment point which we had hoped might be — but which was not — resolved in Massiah, supra note 1. The question now is, must a voluntary confession, tested as above discussed, be excluded because given at a time when the accused was not represented by counsel?

In Crooker v. California⁸ no denial of due process occurred, the majority held, even though the record clearly disclosed that prior to his confession, the accused ashed for and was denied an opportunity to call a lawyer, not yet retained.

In Cicenia v. Lagay,⁹ the accused before his arrest had retained counsel who repeatedly sought access to his client while the latter was being questioned by police. To hold that due process had been denied, said the majority, “would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule.” ¹⁰ (Emphasis added.)

Both Crooker and Cicenia “are not to be regarded as controlling” to the extent they may be inconsistent with Escobedo v. Illinois.¹¹ There the accused repeatedly insisted upon his right to advice from his own retained lawyer. The majority deemed of the essence that the suspect had “requested and been denied an opportunity to consult with his lawyer * * * ” as appears from the holding as particularized.¹² The Court concluded thus:

\..“We hold only that when the process shifts from investigatory to accusa- ¡ tory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” ¹³ (Emphasis added.)

The dissenters saw in the decision “another major step” toward the exclusion of “all admissions obtained from an individual suspected of crime, whether involuntarily made or not.” Perhaps the Court will yet take that final “step,” but the fact remains that it did not do so in Escobedo, a state case, nor did it do so in Massiah, supra¹⁴ The latter has no application whatever to the circumstances in the instant case.

In Massiah v. United States,¹⁵ the accused had been indicted, had counsel and was at liberty on bail as the Government authorities well knew. Even so, acting in concert with a co-defendant who without Massiah’s knowledge had agreed to become a witness for the Government, the authorities concocted a deliberate and surreptitious subterfuge. They planted broadcasting equipment in the co-defendant’s car. Then with receiving equipment in the following car they overheard Massiah’s conversation. He was not aware that he was being victimized by the Government-conceived plot for his interrogation. He had not been put on notice that what he was saying was being recorded by federal agents. The Court had no difficulty under such circumstances in holding that the incriminating statements of the accused could not be used against him.

Obviously neither Escobedo nor Massiah can be read¹⁶ as barring use of this appellant’s confession. Many, learned in the law, deeply believe that no accused should be convicted out of his own mouth. But the Supreme Court has never announced any such proposition — not even where the accused had no attorney and had received no Rule 5 “judicial caution.” United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140 (1944). We said as much ourselves only a month ago in Ramey v. United States, 118 U.S.App.D.C. —, 336 F.2d 743 (1964), cert. denied, 85 S.Ct. 79 (1964) and see United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951) where Rule 5 advice had been imparted. If there were a rule that a confession may not be received if made by an accused without counsel, that would be the end of this case — and of scores like it.

We conclude that no rule of law required the exclusion of this appellant’s confession, voluntarily made,¹⁷ after he had been warned by the F.B.I., the police and the United States Commissioner acting pursuant to Eule 40(h). He had not requested that counsel be appointed¹⁸; he had retained no lawyer; that one was not then appointed for him denied him no right; and as the law now stands, there is no automatic rule of exclusion which will bar use of such a confession by an accused who has no lawyer, under circumstances such as appear on the record before us.

One additional point may be noticed. D.C.Cgde § 14-306 (Supp. Ill, 1964) provides, pertinently, that a wife “is competent but not compellable to testify for or against” her husband and a “wife is not competent to testify as to any confidential communications made by” her husband during the marriage. Here in aid of the appellant’s motion for a mental examination, his wife executed an affidavit setting out that he had always been rational, devoted and understanding until about one month prior to the date of the crime when he became irrational, violent, unreasonable, and began drinking heavily.¹⁹ Defense psychiatrists were cross examined by the prosecutor who put before the experts the substance of the wife’s affidavit. The appellant would have us say that he may invoke action by the court through use of the wife’s affidavit wherein she had abandoned her privilege to refrain from testifying, and at the same time bar the Government’s use of that same affidavit for purposes of impeachment.

We may suggest that the pursuit of truth in a trial does not occur on a one way street. The wife’s testimony by way of affidavit had not been “compellable” to be sure, but the appellant himself had procured and offered that affidavit in his own behalf. By way of analogy, we may observe that Congress has barred physicians from disclosing information, confidential in its nature which has been acquired while attending a patient in a professional capacity. But the section does not apply to evidence in criminal cases where the accused is charged with causing the death of another, or where the disclosure is required in the interests of public justice, or with respect to evidence in pretrial proceedings in a criminal case where a question arises concerning the mental condition of the accused. D.C.CoDE § 14-307 (Supp. III, 1964). Language substantially similar was before us in Parker v. United States, 98 U.S.App.D.C. 262, 235 F.2d 21 (1956), where we held that the ordinarily confidential nature of the communication to a doctor at St. Elizabeths must give way when the accused has raised the defense of insanity.²⁰

We are satisfied that there was no error affecting substantial rights.

Similarly we find lacking in substance such other contentions as have been submitted to us by able court-appointed counsel. Finding no error, the conviction is

Affirmed.

Burger, Circuit Judge:

I do not read the recent holdings of the Supreme Court, far-reaching as they are in excluding voluntary utterances, to render inadmissible all statements made by an uncounselled person in custody. Since these cases are not controlling on the facts shown in this record, I need deal with them no further in order to join in affirming the convictions.

1 . We heard argument several months ago but deferred decision pending disposition by the Supreme Court of the appeal in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

2 . Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949); and such is the general rule, Price v. Johnston, 144 F.2d 260 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L. Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 (1945).

3 . 115 U.S.App.D.C. 133, 134, 317 F.2d 544, 545 (1962), cert. denied, 375 U.S. , 84 S.Ct. 154, 11 L.Ed.2d 113, rehearing denied, 375 U.S. 926, 84 S.Ct. 269, 11 L.Ed.2d 170 (1963).

4 . 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).

5 . 75 U.S.App.D.C. 274, 128 F.2d 265 (1942).

6 . Id. at 286, 128 E.2d at 277. This pronouncement by a former member of this court underlies Eed. R. Grim. P. 5.

7 . 378 U.S. 1, 84 S.Ct. 1489, 1493, 12 L.Ed. 653 (1964).

8 . 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); the dissenting Justices would have said due process required that “the accused who wants a counsel should have one at any time after the moment of arrest.” Id. at 448, 78 S.Ct. at 1296 (Emphasis added.)

9 . 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958).

10 . Id. at 509, 78 S.Ct. at 1300.

11 . 378 U.S. 478, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977 (1964).

12 . Id., 84 S.Ct. 1765.

13 . Id., 84 S.Ct. 1766.

14 . And see again Oicenia, supra notes 9 and 10, cited to the text: “Even in fed- . eral prosecutions this Court has re- ; frained from laying down any such in-j flexible rule.” See generally, An Historical Argument for the Right to Counsel During Police Interrogation, 73 Yale L.J. 1000, 1054 (1964).

15 . Supra noto 1.

16 . And see The Coming of Massiah: A Demand for Absolute Right to Counsel, 52 Geo.L.J. 825, 842, 852 (1964).

17 . Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).

18 . If “lie malees the request for a latoyer and it is refused, he is denied” his Sixth Amendment rights. Culombe v. Connecticut, 367 U.S. at 637, 81 S.Ct. at 1897, concurring opinion. (Emphasis added.) Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), where again the accused had requested but had been denied counsel.

19 . It was not suggested nor does it appear that her description of his traits depended upon “confidential communications.”

20 . Cf. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).