United States v. Howard T. Poole

495 F.2d 115, 161 U.S. App. D.C. 289, 1974 U.S. App. LEXIS 10528

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 17, 1974
• Docket: 72-1533
• Status: Published

Opinions

LEVENTHAL, Circuit Judge:

This is an appeal from a conviction for armed rape, armed robbery and assault with a deadly weapon. The offense took place on February 17, 1971, when a secretary to a United States Senator was accosted in the parking lot of the Senate Office Building shortly after lunch. It is contended that appellant’s confession to the police should not have been admitted in evidence, that it was improperly obtained and was involuntary. We do not agree, and we affirm.

I. FACTS AND BACKGROUND

The Offense

The complainant testified that she was about to get into her car when appellant grabbed the door on the driver’s side, pointed a pistol at the secretary’s head and threatened to “blow [her] head off” unless she kept quiet and moved over, which she did. He then got into the car and, still waving his pistol, drove his victim into an alley, where he ordered her to open her purse and hand him her money.

Not satisfied, and afraid he was being watched, appellant drove to an abandoned garage, ordered his victim to take off her clothes and raped her. When he was done, appellant removed a scarf from the secretary’s purse and wiped portions of the automobile that he thought he had touched, for the obvious purpose of removing fingerprints.¹ He then secured a charge plate with his victim’s name and address and warned her that if she told anyone of his crimes, “my boys are going to come out and kill your children.” With that he left.

About a week later, complainant as-. sisted a police artist in the preparation of a composite sketch of her assailant. This was reproduced and distributed to all police in the area.

The Arrest

About three weeks after the rape, on March 2, 1971, Police Officers Szewczyk and Wyatt, in casual clothes, were patrolling in their squad car near the intersection of 3rd and A Streets, N.E., a place in the Capitol Hill area only a few blocks from the Senate Office Building. At about 8:15 p. m., they observed a man on foot (appellant), who, they thought, resembled the police sketch of the rapist. They noted that he did not travel the path of a person going from one place to another, but rather engaged in changes of direction and crossing streets at other than designated corner paths. At one point the man was seemingly taking a path so as to maintain covert observation of a church door nearby. When a woman was seen to leave the church, appellant started in her direction, but changed direction when it developed that she was joined by a man who left the church shortly after she did.

At this point, Officer Szewczyk decided to confront appellant directly, got out of his patrol car and, holding his badge in his hand, identified himself. He told appellant he wanted to talk with him, to which appellant replied, shouting, “what have I done, what have I done.” When Officer Szewczyk asked him to take his hand out of his pocket, he fled. The police pursued, and when appellant stopped, turned, and pulled out a pistol, Officer Szewczyk removed his service revolver from his holster and pointed it at appellant and ordered him to halt. Appellant discarded an object, later identified as a .38 calibre pistol, containing five live rounds, and continued flight. When he was overtaken and searched, the police found several .38 calibre cartridges in his coat pocket. Appellant was immediately arrested, handcuffed and advised of his rights to counsel and to remain silent.

The Questioning

Appellant, an eighteen-year-old youth, was transported to the First District Headquarters, where he was charged with carrying a dangerous weapon. There he was held until about 11:45 p. m. He was questioned about various crimes — he admitted generally to robberies to support his $60 a day narcotics habit, but did not supply supporting details.

Appellant was advised of his rights at least four times on March 2. Immediately after his arrest, he was read Police Department Form 47.² Subsequently, at 9 p. m., 10:35 p. m., and 11 p. m., appellant was again given the Miranda warnings, as questioning moved from one subject to another, and the officers familiar with the new subject matter were called in. On each of these latter three ocassions, appellant signed a statement stating that he had heard and understood the warnings and consented to being questioned without the presence of counsel.

Shortly after 10 p. m., officers of the Sex Squad, who had been called in view of appellant’s resemblance to the composite sketch, arrived at the police station (Tr. IV-97). After the arresting officers were through, Officer Kelly of the Sex Squad and his partner went to another room where they took a photograph of appellant and pubic hair samples (Tr. IV — 97-98).

Mr. Kelly testified that he then offered Poole a cigarette, and started to talk to appellant, after establishing that appellant had been advised of his rights (Tr. IV-100). Officer Kelly confronted appellant with the fact “that he was a very good look-alike as far as the composite and if the complainant could make a composite that well of a suspect by a drawing, that if she saw a photograph of the suspect, she most likely could identify him.” (Tr. IV-98). Officer Kelly also told Poole of the possibility that there could be identification through fingerprints and analysis of the pubic hair. “At that time I asked Mr. Poole if he committed the rape and he told me ‘no.’ Then he hesitated a little bit and he asked Detective Tague, my partner, to leave the room.” (Tr. IV-98). When they were alone, Officer Kelly offered Poole another cigarette, and Poole asked about the possibility of a high bond. Mr. Kelly told appellant that if he wanted to confess they could go to the Sex Squad, but there would be no promises. Appellant then looked around a little bit, and said, “Okay, let’s go to the Sex Squad.” On questioning, he said he had raped the secretary, and he gave details that included items which had never appeared in the press. At that point, Officer Kelly stopped appellant, they went to the Sex Squad, arriving about 11 p. m., and there appellant,’ advised again of his rights, agreed to make a written statement to an officer sitting at the typewriter. A pretrial motion to suppress this written statement was unsuccessful. At trial, the confession was offered in evidence and admitted over objection.

The Identification

When appellant appeared in a lineup, with counsel present, on March 16, 1971, the complaining witness, admitting nervousness, did not identify him, identifying tentatively someone else. A few weeks later, after testifying before the grand jury, she asked Sergeant Way-bright to show her a photograph of the lineup. On viewing this photograph, without any suggestion, she identified appellant as her assailant. This photographic identification, as well as an in-court identification at trial, were allowed in evidence over objection.

II. IDENTIFICATION ISSUES

We may note at the outset that there are no significant legal issues in regard to the identification or the identification procedures. Appellant’s legal challenges are obviated by United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), which determined that there is no right to counsel when photographs are displayed to a complainant for the purpose of identification of a suspect. In United States v. Brown, 149 U.S.App.D.C. 43, 461 F.2d 134 (1972) (en banc), we upheld the showing of a photograph of a counselled lineup in circumstances not significantly different.

III. ADMISSIBILITY OF CONFESSION

A. Appellant’s Waivers After Being Advised of His Rights

In our view, the defendant, after receiving valid Miranda warnings, knowingly and voluntarily waived his rights to remain silent and to counsel. Appellant was given the warnings on the street by Officer Szewczyk when arrested at 8:35 p. m. He was read the warnings at the stationhouse at about 9 p. m. by Officer Quantrelle (Tr. 11-83), who asked Poole to sign the form.³ During this conversation, Mr. Quantrelle learned of appellant’s heroin addiction, but appellant gave no indication — verbal or otherwise — that he was undergoing withdrawal (Tr. II 85-86). He did not complain about his physical condition; he did not appear to be in pain; his eyes did not appear to be running (Tr. 11-73). Also during this conversation, appellant admitted to having committed certain robberies, although he denied complicity in others. (Tr. 11-87).

Although appellant denies being warned on the street, he admits that his rights were read to him at the station-house shortly after his arrival. He further expressly testified that he understood what they were saying, that he did not ask to call a lawyer, and did not tell the police he would not talk to them. (Tr. A 34-35). And the record reveals at least two other occasions upon which appellant was advised of his rights prior to confession. Although the testimony of the police was in certain respects at variance with that of appellant, compare e. g., Tr. II 95 with Tr. A 20, appellant’s own testimony on this matter is somewhat inconsistent.⁴ The issue is one of credibility.

We conclude that appellant had the capacity to waive his rights. He claims that he was young, ignorant and easily cowed, and that as a heroin addict undergoing withdrawal he was without power to resist the blandishments of his interrogators. These assertions are not supported by the record.

The record supports the findings of the trial judge that the record establishes by “more than a preponderance of the evidence No. 1, that he was not in withdrawal at the time and, No. 2, that his confession was in fact freely given without coercion of any kind.” (Tr. II 136).

To be sure, appellant was a youth of 18 years when arrested, and had dropped out of school in the 10th grade. Though he was young "chronologically, he was not unacquainted with criminal procedures. The record shows that he had previously been arrested as many as twenty times, that included among the prior charges was armed robbery, to which he subsequently pleaded guilty. (Tr. A-37), (Sentencing Tr. 8). He had been advised of his rights each time he was arrested. He understood his rights when they were read upon arrival at the stationhouse (Tr. A 34), and indicated impatience when they were read to him again.⁵ (Tr. II 95).

At trial, appellant’s attack on the vol-untariness of his confession was based on his testimony that he was undergoing heroin withdrawal when he made the statement. This testimony is contradicted by all other witnesses; in fact, appellant’s testimony as to the sudden onset and immediate severity of his symptoms (Tr. A 30), does not lend much credence to his story. The trial court believed the police on this point, and we see no warrant to reverse.

Somewhat inconsistently, it is now speculated that if appellant was not undergoing withdrawal, he may well have been in a state of drug-induced lethargy. This kind of double barrelled approach could vitiate most if not all statements by narcotic addicts, even if counseled. It suffices in the present case to say that the record simply does not support speculation about the incapacity of appellant. The testimony credited by the trial judge depicted a suspect who was aware, even impatient, rather than either stupefied or tormented.⁶

We follow the approach set forth in United States v. Frazier, 155 U.S.App.D.C. 135, 476 F.2d 891 (1973) (en banc), in which we held that where the police follow the Miranda procedure carefully, appellate courts should be slow to mandate additional responsibilities. In the instant case, all indications point to an informed and voluntary waiver of the rights to counsel and to remain silent.

B. Claim of Unlawful Detention Under Rule 5(a)

Appellant also contends that the confession should have been suppressed in that it was obtained while appellant was unduly detained in the stationhouse before presentment to a magistrate in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). A like contention was fully discussed and rejected in Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969), cert. denied, 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676 (1970) and Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969).

Those holdings were based on the understanding that the primary purpose of the Mallory rule is to ensure that suspects are advised of their rights to silence and counsel, to prevent the coercion inherent in prolonged custodial isolation. When there is intelligent waiver of the rights to counsel and to remain silent, and the accused voluntarily submits to interrogation, this aim of the Mallory rule is accomplished. While as a matter of formal logic it might be argued that the law requires immediate presentation to a magistrate, under Rule 5(a), of a person who voluntarily talks to the police on a waiver of his right to keep silent and have counsel, Pettyjohn and Frazier establish that the substantial purpose of protection of basic rights does not interpose this separate requirement, for even though the advices are given by a police officer rather than a court, they are nonetheless significant. As the Court stated in Miranda supra, 384 U.S. at 469, 86 S.Ct. at 1625:

This warning is needed in order to make [defendant] aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system — that he is not in the presence of persons acting solely in his interest.

The extent and nature of a suspect’s detention may of course be taken into account, as part of the totality of pertinent circumstances, in determining whether a confession was inadmissible for lack of voluntariness. This aspect of the case is discussed in section III, C. What we say at this juncture is that appellant is not entitled, in view of his waivers, to an automatic interdiction of a voluntary confession on the basis of Mallory and Rule 5(a).

C. Claim that Confession Was Involuntary Under Totality of Circumstances

Our dissenting colleague concludes that the totality of circumstances require an appellate determination of lack of voluntariness in the confession. We therefore review the circumstances whose totality are said to result in a conclusion that Poole was subject to compulsion.

1. The questioning in the absence of counsel does put a heavy burden on the Government to show a waiver of rights, but this case shows a waiving of rights, and waiver repeated to the point of Poole’s impatience.

2. It is said that appellant was a youth of 18, who says he was frightened when arrested. A large and growing percentage of arrested offenders are youths. They are probably uneasy when arrested. Their youth is presumably taken into account, along with the nature of the offense involved and prior record, in determining whether they should be let off by the police without an arrest. The judge takes it into account in determining whether they should be given probation instead of other sentence, or should be sentenced under the Youth Corrections Act. But youth alone does not immunize the young from an appraisal of the extent of current criminality. This means asking questions, and if a lawyer is knowingly waived the youth may.be questioned although no lawyer is present.

3. The assertion that Poole was frightened when arrested, given fillip by noting that he was arrested at gunpoint, requires that we emphasize the circumstances of the arrest; appellant’s resemblance to the sketch and his suspicious street conduct led police to identify themselves and ask to talk; it was only after appellant shouted, took flight, drew his pistol and turned toward the police, that he was arrested.

4. We fail to see on what basis it can fairly be said that pressures constituting a “compulsion to confess” were presented by the action of the police in “confronting him [Poole] with the composite, telling him the victim most likely would identify him, the physical taking of his pubic hairs, representing to him that the hairs they had could possibly match those found on the property of the complainant, and stating that they possibly had some fingerprints.”

A confession is not involuntary because a Sex Squad officer shows a composite sketch, developed with the help of a complainant, and says that the suspect is a -very good look-alike, and if a complainant could make that good a composite by a drawing, if she was shown a photograph “she most likely could identify him.” (Tr. IV-98). The pressure of incriminating evidence is not what the law means when it refers to compulsion that undermines voluntariness, except perhaps in highly unusual pathological situations.

Nor was there “compulsion” invalidating the confession because the Sex Squad officer told appellant of the tests normally performed in sex cases, of the taking of fingerprints and hairs. This was not, like the sketch, a statement of evidence already incriminating, but a statement of the possibility that other evidence incriminating the suspect may be developed. (Tr. IV-111). There was a “print positive” for the rape offense, though of a person still unknown. (Id.)

As to the taking of pubic hair, that may, like the taking of prints, have been a search and seizure,⁷ and it may have been taken into account by the defendant as opening the door to the possibility that the police might establish evidence incriminating him, but it was not a compulsion that drained his statement of voluntariness. The analysis is not advanced by noting that it was an invasion of personality. So was the fingerprint and photograph. So was the drawing of a blood sample that was held in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), not to involve -the privilege against self-incrimination and to be consistent with both due process and the protection of privacy embodied in the Fourth Amendment. The taking and matching of a suspect’s hairs may be a reasonable step in government investigation.⁸ The fact that these are pubic hairs stems from the nature of the offense.⁹

5. The facts of this case are a far cry from the kind of overbearing that might arguably constitute psychological compulsion. There were no threats or promises. This is not even a case where the policeman voiced sympathetic understanding of defendant’s predicament. While the officer may have exaggerated the possibility that additional evidence might be found, the reality of the composite sketch can hardly be faulted. Even the more stringent case of use by police of informant agents or other ruses ¹⁰ does not automatically undermine the voluntariness of the statements elicited.

6. The fact that Poole was a narcotic addict does not negative voluntariness. The credited testimony of the police officer is that appellant did not complain of withdrawal pains until the next day, did not seem to be in pain or exhibit e. g., a running of the eyes and that he was alert, aware of his rights and impatient. Appellant’s own testimony is undercut by his admission that when he was running from the police, a half-hour before arriving at the stationhouse, he was not experiencing any withdrawal pains (Tr. A-30).

7. The “totality of circumstances” may be shorthand to denote that the whole is greater than the sum of its parts. That is often true, but here there are parts of the evidence which would have to be glossed over in order to find compulsion overriding will: the circumstances of the arrest (and appellant’s past experience in being arrested) diluting the inference of apprehension from an arrest at gunpoint; the repeated advice as to rights to counsel and not to speak and the substantiated finding of waiver; the use by the Sex Squad of the composite sketch as reflecting not impermissible pressure but straightforward presentation of incriminating evidence ; and so on.

Perhaps a seasoned advocate would tell a suspect-client, Don’t say anything, no matter what they show you or say. But Miranda does provide for waiver of counsel. The lack of counsel does not become compulsion as a matter of law because the suspect is a young narcotic addict (at least in the absence of withdrawal agony), who is advised of substantial evidence that is incriminating, and of the possibility that other evidence may link him to the crime.

The ultimate determination of volun-tariness and waiver, vel non, is for this court to make, although we are rightly guided by the trial judge insofar as this must depend on matters, like demeanor, that cannot be captured in a cold record. On our own review of the record we are of the opinion that the Government has met its burden of adducing the pertinent facts as to what happened, and of showing that the defendant’s confession was voluntary and not coerced and that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Under the jurisprudence of this court, the conviction for assault with a deadly weapon must be vacated,¹¹ but otherwise the judgment is affirmed.

So ordered.

1 . One clear print was later found but not identified. Tr. IV-111.

2 . Following Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Metropolitan Police Department developed Form 47, which reads as follows :

WARNING

You are under arrest. Before we ask you any questions, you must understand what your rights are.

You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning.

If you cannot afford a lawyer and want one, a lawyer will be provided for you.

If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

WAIVER

1. Have you read or had read to you the warning as to your rights?..............

2. Do you understand these rights?......

3. Do you wish to answer any questions?

4. Do you wish to have an attorney present during questioning? ..............

5. Signature of defendant on line below.

6. Time............ Date

7. Signature of officer........

8. Signature of witness.......

3 . The fact that appellant printed his name at that time, Officer Quantrelle testified, was not unusual. (Tr. II 85). The other times, appellant signed his name and the waivers.

4 . See, e. g., Tr. A 33-35.

5 . With appellant fully aware of his rights to counsel and to keep silent, the police were not bound to make a special effort to inform him that Ms rights persisted -when the subject shifted from robbery to rape, though this procedure is ordinarily preferable as assuring that any officer receiving a statement will be able to testify as to the warnings given. Officer Kelly of the Sex Squad testified that when he came on to the scene he elicited from appellant that he had already been informed of those rights.

6 . The trial court found (Tr. 11-135) :

On the contrary, all the evidence that I have heard, except Mr. Poole’s, by the various officers, it was unanimously testified to by the officers that there were no signs of physical discomfort. They were not aware that he was in any pain or discomfort of any kind; that he was cooperative with them; that he was able to sort out one robbery from another, thus indicating that he was thinking, that he was alert; that at all times he was alert to what was going on. When he talked to his mother, he was showing remorse for the crime he admitted he had committed

7 . We are not required to consider in what circumstances such a search and seizure may be had. The question under discussion is whether the confession was involuntary and its use a denial of due process. This case has not been presented or focused as a claim that somehow the confession is the fruit of a poisoned search, and we do not think it appropriate at this juncture, to determine whether the police had reasonable cause to arrest defendant for rape (as well as possession of a deadly weapon) or what are the incidents of a reasonable search incident to such an arrest.

8 . United States v. Allen, 337 F.Supp. 1041, 1043 (E.D.Pa.1972); of. Wise v. Murphy, 275 A.2d 205, 214-215 (D.C.C.A.1971).

9 . Cf., United States v. Sheard, 154 U.S.App.D.C. 9, 473 F.2d 139 (1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2784, 37 L.Ed.2d 404 (1973) (benzidine test on penis).

10 . United States v. Lemonakis & Enten, 158 U.S.App.D.C. 162, 485 F.2d 941 (1973); United States v. Kinnard & Payne, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972).

11 . See United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1973); United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973).