Katherine Rettig v. United States

239 F.2d 916, 99 U.S. App. D.C. 295, 1956 U.S. App. LEXIS 5445

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 26, 1956
• Docket: 12697
• Status: Published

Opinions

EDGERTON, Chief Judge,

announced the judgment and division of the court as follows:

This conviction for second degree murder is reversed and the case is remanded to the District Court for a new trial on the ground that the trial court erred in refusing to exclude police testimony concerning appellant’s alleged oral confessions that she stabbed her husband. Chief Judge' EDGERTON and Circuit Judges PRETTYMAN, BAZE-LON, FAHY, ' WASHINGTON and DANAHER vote for reversal on that ground. Circuit Judges WILBUR K. MILLER, BASTIAN and BURGER vote for affirmance; Judge BAZELON files an opinion in which Judge EDGERTON concurs. Judge DANAHER files an opinion in which Judge PRETTYMAN concurs. Judges FAHY and WASHINGTON file a separate statement. Judge WILBUR K. MILLER files a dissenting opinion in which Judges BAS-TIAN and BURGER'concur.

BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge, concurs.

The issue is whether the rule adopted by the Supreme Court in McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, requires, exclusion of the testimony concerning appellant’s oral confession. We conclude that it does, because, like the McNabbs, appellant confessed as a result of being “questioned while held in ‘plain disregard of the duty enjoined by Congress upon Federal law officers’ promptly to take them before a judicial officer.” Upshaw v. United States, 1948, 335 U.S. 410, 413, 69 S.Ct. 170, 171, 93 L.Ed. 100. And in that view of the case, we do not reach the question of legal effect of psychological mistreatment of the appellant during questioning.

Rule 5(a) .of the Federal Rules of Criminal Procedure directs that arrested persons must be taken “without unnecessary delay before * * * [an] officer empowered to commit persons * *¹ Rule 5 (b) empowers the committing officer to admit such persons to bail and directs him to inform such persons of the complaint against them, their right not to make a statement and that any statement they do make may be used against them.² Emphasing that this required procedure “checks resort to those reprehensible practices known as the ‘third degree’ * * 318 U.S. at page 344, 63 S.Ct. at page 614, the Supreme Court in McNabb established a rule of evidence excluding confessions “secured through * * * flagrant disregard of the procedure which Congress has commanded * * Id., 318 U.S. at page 345, 63 S.Ct. at page 615. In describing the circumstances in which the commitment requirements were violated there, the Court mentioned not only that the McNabbs had not been brought promptly before a magistrate, but in addition described the unremitting and obviously oppressive interrogation to which they had been subjected. Id., 318 U.S. at pages 344-345, 63 S.Ct. at pages 614-615.

Thereafter, in United States v. Mitchell, the Court said, “Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case * * 1944, 322 U.S. 65, 67, 64 S.Ct. 896, 897, 88 L.Ed. 1140. Mr. Justice Reed, concurring in the result, considered this “a desirable modification of the McNabb case.” Id., 322 U.S. at page 71, 64 S.Ct. at page 899. The confession was held admissible, however, on the sole ground that there had been “no disclosure induced by illegal detention * * The accused had confessed “within a few minutes of his arrival at the police station,” and his subsequent illegal detention for eight days did not “retroactively change the circumstances under which he made the disclosures.” Id., 322 U.S. at pages 69, 70, 64 S.Ct. at page 898.

Four years later, the Court decided Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. Up-shaw had confessed after being held for interrogation without arraignment for more than 30 hours, and his confession had been admitted at the trial. This court, despite the Government’s confession of error, affirmed the conviction on the ground that there had been no coercion, physical or psychological, during the illegal detention.³ We stressed, as the Supreme Court pointed out, that Up-shaw’s “detention unlike McNabb’s, ‘was not aggravated by continuous questioning for many hours by numerous officers.’ ” 335 U.S. at page 412, 69 S.Ct. at page 171. In holding the confession inadmissible under the McNabb rule, the Supreme Court made clear that in Mc-Nabb it had described the oppressive interrogation simply “to show that the record left no doubt that the McNabbs were not promptly taken before a judicial officer as the law required, but instead were held for secret questioning * * * ” 335 U.S. at page 413, 69 S.Ct. at page 171. The Court added: “The McNabb confessions were thus held inadmissible because the McNabbs were questioned while held in ‘plain disregard of the duty enjoined by Congress upon federal law officers’ promptly to. take them before a judicial officer.” Ibid., emphasis supplied. The Court pointed out that its holding in Mitchell “was only that Mitchell’s subsequent illegal detention did not render inadmissible his prior confessions,” ibid.; and it declared that under the McNabb rule “ * * * a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the ‘confession is the result of torture, physical or psychological * * *.’ ” Ibid., emphasis supplied. The dissenting justices, per Mr. Justice Reed, found the majority opinion inconsistent with the Mitchell explanation of McNabb, 335 U.S. at page 423, 69 S.Ct. at page 176, and criticized it for holding that “illegal detention alone is sufficient to bar from evidence a confession to the police during that unlawful detention.” Id., 335 U.S. at page 430, 69 S.Ct. at page 180.

In United States v. Carignan, 1951, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48, the Court adhered to the Upshaw statement of the McNabb rule. Id., 342 U.S. at page 43, 72 S.Ct. at page 101. It held, however, that a murder confession made by one who had been properly arraigned on an assault charge, but not for murder, was not excludable. The Court reasoned that since Carignan had been initially arraigned in conformity with Rule 5(a) “this case falls outside the reason for the rule, i. e., to abolish unlawful detention. Süch detention,” the Court said, “was thought to give opportunity for improper pressure by police before the accused had the benefit of the statement by the commissioner. Rule 5(b) [F.R. Crim.P., citing Upshaw and McNabb]. Carignan had received that information at his commitment for the assault.” Id., 342 U.S. at pages 44-45, 72 S.Ct. at page 101. Thus, Carignan implies that the McNabb rule applies to all confessions made in response to interrogation while the accused is held in violation of Rule 5(a), and hence before he has received the benefits of Rule 5(b).⁴

In two recent state confession cases, the Supreme Court distinguished the coerced confession rule, applicable in state as well as federal courts, from the Mc-Nabb rule which applies only in the federal courts. In Brown v. Allen, the Court declared:

“Under the leadership of this Court a rule has been adopted' for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. * * * This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance.” ⁵

In Stein v. People of State of New York, the Court likewise indicated that no explicit showing of coercion is required under the McNabb rule. The Court said:

“Petitioners confuse the more rigid rule of exclusion which, in the exercise of our supervisory power, we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment. This, we have held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncounseled and illegally detained.” ⁶

Prior to the Supreme Court’s reversal of our decision in Upshaw, the prevailing view in this jurisdiction had been that relentless questioning or other “aggravating circumstances” were required in order to invalidate a confession made during an illegal detention.⁷ In Garner v. United States, the first case to come before this court after Upshaw, we declared :

“ * * * we must consider it to be a settled principle that, when arresting officers unnecessarily delay taking a prisoner before a committing magistrate, any confession made to them during that delay is inadmissible; and that is true even though the confession was not induced by the illegal detention nor by any form of coercion, but was voluntarily given.”⁸

This dictum was repudiated three years later by other dictum in Pierce v. United States.⁹ We said: “Further study of the Upshaw opinion causes us to conclude that the Court did not intend to enlarge and extend the original McNabb ruling. Its restatement of the rule should be read, we think, in the light of the facts of the McNabb case * * ¹⁰ We took the same position, again as dictum, in Allen v. United States.¹¹

Since the views expressed in the Pierce and Allen cases were dicta, we are not bound by them in deciding this case. We think, with due deference, that the McNabb rule is not limited to the facts of the McNabb case. The holding in Upshaw and language in the Brown and Stein cases, decided by the Supreme Court subsequent to Pierce and Allen, indicate the contrary. Under Brown and Stein, the McNabb rule operates as a sanction against police irregularities that create an opportunity for third degree methods by compelling an accused to face his questioners incommunicado, uncounseled, and uninformed of his rights. A confession obtained through secret interrogation during illegal detention is not admissible in evidence, whether or not, as in McNabb, the questioning is not merely secret but is coercive in other respects as well.¹²

We turn now to determine whether the confession in the present case was made in circumstances which bring it within McNabb.

Appellant returned from her employ-meht as a waitress to the apartment where she lived with her husband, at 2 :- 20 a. m., Sunday, October 24, 1954. At about 6:15 a. m., she reported to police that her husband had been stabbed while asleep with her on the sofa. Police Sergeant Deenihan described what he saw when he arrived at the apartment shortly after the report. Then he testified that appellant told him that “someone came in, and she didn’t know who it was, and that he must have stabbed her husband.”

At that point the court granted defense counsel’s request for a hearing outside the presence of the jury to determine whether, as the court put it, there had been an “overlong detention.” The police testimony was that, in a middle-of-the-night interrogation of appellant 16% to 19% hours after her arrest, she told the police she had stabbed her husband after they had fallen asleep together on the sofa.¹³

At the hearing it was established that appellant was placed under arrest at 7:30 a. m., Sunday, October 24, and taken to the Homicide office. From about 8:30 to 9:00 a. m., Sergeant Deenihan questioned her. From about 9:00 to 10:30 a. m., he gave her a lie detector test to which she consented. From about 10:30 to 11:00 a. m., she was at the Identification Bureau. From about 11:00 to 11:-30 or 11:45 a. m., the Sergeant interviewed her at the Homicide office. From about 12:00 noon to 2:00 p. m., he gave her another lie detector test. From about 2:00 p. m. to “quarter of 3, 3 o’clock” he interviewed her again. Thereafter she was returned to the Homicide office where she remained until “some time after' 3:30.” She was then sent to the Women’s Bureau where she arrived at 4:30 p. m. At 7:45 p. m. she was interviewed for 20 or 30 minutes by an officer from Precinct No. 9, who believed she was awakened for that purpose. She was awakened some time between 12 midnight and 3:00 a. m., Monday morning, and questioned by Sergeants Deeni-han and Clark from Homicide for about 40 minutes to an hour. It was during this period of questioning, said the officers, that appellant made the oral confession. Not until approximately 11:15 Monday morning, was appellant taken before the coroner for an inquest.

Upon completion of the Government’s ■evidence at the hearing, the court observed that the period between appellant’s ■arrest and oral confession was “certainly dealing with a long period of time.” But the court, the prosecutor and defense counsel thought that illegality of detention was not the sole prerequisite to ■exclusion of the confession. As the prosecutor expressed it, “a showing * * * of a patent denial of due process by coercion” was required in addition. Defense counsel argued that, although illegal detention in itself is insufficient, sufficient psychological pressure had been shown by the Government’s own witnesses to render the confession inadmissible as a matter of law. He subscribed to the interpretation of McNabb expressed in Mr. Justice Reed’s dissent in Upshaw v. United States, 1948, 335 U.S. 410, 414, 69 S.Ct. 172, 93 L.Ed. 100, namely, that “pressure short of coercion but beyond mere detention makes confessions inadmissible.” Id., 335 U.S. at page 429, 69 S.Ct. at page 179.

On the question of whether the application of the McNabb rule is to be decided by judge or jury, the trial court disregarded McNabb itself¹⁴ and followed the line of Mr. Justice Reed’s dissent in Up-shaw.¹⁵ He determined that the evidence of coercion was not so patent as to justify a conclusion that it existed as a matter of law and that the issue was, therefore, one for the jury. Accordingly, upon the resumption of the trial before the jury, Sergeant Deenihan was permitted to relate the circumstances under which appellant was detained and to testify to the statements alleged to constitute the confession.¹⁶

The case was submitted to the jury on Mr. Justice Reed’s theory that “pressure short of coercion but beyond mere detention” is necessary to make the alleged confession inadmissible. The jury was told that the defense contention as to the confession was based “upon the proposition that there was a psychological pressure brought to bear on her, by virtue of the length of time that she was incarcerated; and this was somewhere from, let us say roughly, 6:30 in the morning until whenever it was, between midnight and 3 in the morning * *

The submission of the McNabb question to the jury was clearly erroneous. “It was for the trial judge to determine in accordance with the procedure outlined in McNabb v. United States, whether Rule 5 had been satisfied in accordance with our standards.” Watson v. United States, supra, note 7, 234 F.2d at page 48. And, on the facts of this case, that determination should have been to reject the confession testimony. The confession was secured between midnight and 3:00 a. m., 16% to 19% hours after arrest and before arraignment, after appellant had been subjected to prolonged questioning at various intervals. We would hold that in these circumstances she was not taken before a committing magistrate “without unnecessary delay” within the meaning of Rule 5(a),¹⁷ and that the confession was produced by interrogation during an illegal detention.

The Government suggests that the delay in arraignment was necessary because the police are not required by Rule 5(a) to take appellant before a committing officer on Sunday. We think this view is without merit. So, apparently, did the trial court.¹⁸ The prosecutor admits that no effort was made on Sunday to take appellant before any officer empowered to commit on the theory that commissioners are unavailable on Sunday.¹⁹ But that theory is refuted, at least in this jurisdiction, by James v. Lawrence, 1949, 84 U.S.App.D.G. 355, 356, 176 F.2d 18, 19, where a preliminary hearing before a commissioner took place at 2:00 p. m. on a Sunday. No language in the rule justifies an exemption of Sunday arrests from the requirement of prompt commitment. To carve out that exemption by holding that delay is automatically “necessary” on Sundays, or at times other than the regular office hours of an available commissioner is, as the Second Circuit has suggested, “unrealistic * * * from both the accused’s and the court’s standpoint.” United States v. Levitón, 2 Cir., 1951, 193 F.2d 848, 854. It would mean that a “week-end or midnight arrest gives the officers all sorts of powers they do not otherwise possess * * * they may then delay the arraignment as much as three days if a holiday succeeds the Sunday.” Ibid.

We think the issue of whether there has been an “unnecessary delay” in arraignment must be resolved, in every case, by deciding whether there have been reasonable and bona fide efforts²⁰ promptly to seek a commissioner or “other nearby officer.”²¹ And, since “every judge or justice of the United States” is empowered to take arraignments,²² making about 50 such officers available in the District of Columbia, the good faith effort cannot be confined to a commissioner. It may be that committing magistrates are not as readily available on Sundays or holidays as they are during regular working days. That factor, however, does not conclude the issue of delay, but is only one circumstance to be considered in determining whether the delay is reasonable or necessary. Another circumstance to be considered, but only in the event that it is shown that earlier arraignment was not possible, is whether the police have given the prisoner the benefit of the advisory statement which the committing officer would give under Rule 5(b).²³ Here, even if it could be shown that Sunday arraignment was not possible, the delay would nevertheless be unreasonable and the detention illegal, because the record shows no such advisory statement to the appellant before the inquest.

FAHY and WASHINGTON, Circuit Judges.

We agree with Judge BAZELON’S analysis, in which Judge EDGERTON concurs, of the requirements of the Mc-Nabb rule and concur in reversal of the judgment of conviction on the ground that those requirements have not here been met, as well as on the ground that the evidence showed that the confession was involuntary.

1 . “An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.”

2 . “The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules.”

3 . 1948, 83 U.S.App.D.C. 207, 168 F.2d 167.

4 . Detained without arraignment, “the accused is under the exclusive control of the police * * Mr. Justice Douglas, concurring in Carignan, 342 U.S. at page 46, 72 S.Ct. at page 102. The obvious benefit of Rule 5 is that the committing magistrate removes the accused from police control to the control of the jail warden, beyond the peril of secret interrogation and pressure. If delay in commitment is unavoidable, the danger inherent in continued police control may to some extent be mitigated by the police advising the accused of his rights and affording him the opportunity to consult counsel. See my dissenting opinion in Green v. United States, 1956, 98 U.S.App.D.C. 413, 236 F.2d 708.

5 . 1953, 344 U.S. 443, 475, 73 S.Ct. 397, 417, 97 L.Ed. 469, emphasis supplied.

6 . 1953, 346 U.S. 156, 187-88, 73 S.Ct. 1077, 1094, 97 L.Ed. 1522, emphasis supplied.

7 . In Mitchell v. United States, 1944, 78 U.S.App.D.C. 1.71, 138 E.2d 426, the first post-MeNabb case to come before this court, we took the position that a confession was inadmissible whenever an arraignment statute was violated, whether the confession was “voluntary or involuntary.”

Following the Mitchell reversal by the Supreme Court, United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, in Sykes v. United States, 1944, 79 U.S.App.D.C. 97, 143 F.2d 140, we held that a “voluntary confession obtained during an illegal detention” was admissible “provided it was not induced by the illegal detention.” We took a seemingly contrary position in Akowskey v. United States, 1946, 81 U.S.App.D.C. 353, 354, 158 F.2d 649, 650, holding simply that since the detention was illegal, “the incriminating statements of the accused were inadmissible * * *.” Subsequently, however, in Boone v. United States, 1947, 82 U.S.App.D.C. 359, 164 F.2d 102, we reverted to the view that an illegal detention did not nullify a voluntary confession uttered during its continuance. We read McNabb and Mitchell as holding that a confession was inadmissible only if induced by the illegal detention, and distinguished the Akowskey case on the ground that there the confession had been the result of relentless questioning and it was that factor, not the illegal detention per se, that had nullified the confession. In Wheeler v. United States, 1947, 82 U.S. App.D.C. 363, 165 F.2d 225, certiorari denied 1948, 333 U.S. 829, 68 S.Ct. 448, 92 L.Ed. 1115; and Alderman v. United States, 1947, 83 U.S.App.D.C. 48, 165 F.2d 622, like Boone decided in 1947, we adhered to the view that a confession is not rendered inadmissible unless induced by the illegal detention.

Recently in Watson v. United States, 1956, 98 U.S.App.D.C. 221, 234 F.2d 42, 47-48, we reiterated the requirement that the detention must produce the disclosure, but pointed out that “interrogations * * * bad their effect. They became part of the whole net * * * enmeshing [the prisoner] in duress, however subtly applied.”

8 . 84 U.S.App.D.O. 361, 364, 174 F.2d 499, 502, certiorari denied 1949, 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748.

9 . 1952, 91 U.S.App.D.C. 19, 197 F.2d 189. In both Garner and Pierce the confessions were held admissible and the convictions affirmed on the ground that there had been no unlawful detention.

10 . 91 U.S.App.D.C. at page 21, 197 F.2d at page 192.

11 . 91 U.S.App.D.C. 197, 202, 202 F.2d 329, 334, certiorari'denied, 1952, 344 U.S. 869, 73 S.Ct. 112, 97 L.Ed. 674. Allen’s confession came in response to questioning which he had invited by going to the police voluntarily “to talk about the crime.” In both the Pierce and Allen cases, the writer of this opinion, without endorsing the court’s interpretation of Upshaw, concurred in the result on the ground that the confessions were not made after a period of “unnecessary delay.” ' '

12 . Even while expressing reliance on Pierce and Allen, we seem to have returned to the straightforward rule which employs as the standard simply whether the confession was obtained through secret interrogation of an illegally detained prisoner. To say, as we did in Watson, supra, note 7, that the interrogations were “subtly applied” duress is not far from saying that a confession obtained through secret interrogation during illegal detention is inadmissible.

13 . ■ But, the prosecutor added in his proffer, “almost immediately' after that, she said that she doesn’t remember stabbing him, and believed that he stabbed himself,” and then “her admissions and denials continued for the next 30 minutes.”

14 . “ * * * it is tlie duty of the trial court to entertain a motion for the exclusion of evidence [alleged to have been obtained in violation of the commitment procedure] and to hold a hearing * * to determine whether such motion should be granted or denied.” 318 U.S. at page 346, 63 S.Ct. at page 616, citing cases involving motions which must be resolved by the court to suppress and return evidence.

So far as we are aware, the question of exclusion under the McNabb rule has been decided by the court in every reported case wherein the rule has been asserted.

15 . “Obviously there is a wide range of discretion as to how much psychological pressure is necessary. * * * Under this interpretation of McNabb * * * as in coerced confessions, it should be left to a jury to decide whether there •was enough evidence of pressure where the admitted facts do not show improper pressure as a matter of law.” 335 U.S. at page 429, 69 S.Ct. at page 180. But the Supreme Court, in Upshaw, adopted a very different interpretation of Mc-Nabb.

16 . Although we do not reach the question of the coercive effect upon appellant of the detention and its attendant circumstances, it is clear from Sergeant Deeni-han’s testimony that appellant was under severe emotional stress during the period of detention. When he questioned her before giving her a lie detector test, he said she could not remember what happened in connection with the stabbing; that she was “just going through a change in life” and, in “the last several years,” “there are times that I go to work and I don’t even remember working or coming home.” Based upon special training he had had in giving lie detector tests, he forecast that the test “wouldn’t work” because of appellant’s physical changes due to menopause and because “she was either mixed up or confused, to a point where she didn’t know whether she did it or whether some outside prowler did it, or whether her own husband did it”; but he gave her the tests anyway to “calm her, give her a chance to rest”; the inconclusive results of the test confirmed his forecast.

17 . “ * * * what constitutes ‘unnecessary delay,’ i. e., reasonable time within which the prisoner should be brought before a committing magistrate, must be determined in the light of all the facts and circumstances of the case.” Notes of Advisory Committee, Rule 5(a).

18 . [Asst.U.S.Atty.]: This was Sunday, Your Honor, and I don’t know of any Commissioner available on Sunday.

The Court: Yes, he is.

[Asst.U.S.Atty.]: He would have to be called at home.

The Court: Of course, I understand that. But he is available, and so are the Municipal Court Judges * * *.

19 . Ibid.

20 . This was the test applied in Pixley v. United States, 10 Cir., 1955, 220 F.2d 912, 913-914. There the court held there was no “unnecessary delay” in committing, on Monday morning, an appellant taken into custody Saturday morning, but only upon a finding that an effort was made “almost immediately” to seek a commissioner in another city, and that he was unavailable for the weekend. Though no effort was made to take appellant before a district judge in the other' city, or before some other committing magistrate, it was not shown that these officers were available over the weekend. Moreover, appellant was immediately advised that “he did not have to make a statement; that any statement he might make could be used against him; and that he was entitled to an attorney.” Id., at page 913; see also dissenting opinion in Green v. United States, supra, note 4.

See also Haines v. United States, 9 Cir., 1951, 188 F.2d 540, certiorari denied 1951, 342 U.S. 888, 72 S.Ct. 172, 96 L.Ed. 666.

21 . Rule 5(a).

22 . 18 U.S.C. § 3041 (1951).

23 . See notes 4 and 20, supra.