Emanuel Pea, Jr. v. United States

Jr., PEA, Appellant, Emanuel America,

UNITED STATES Appellee.

No. 20433. Appeals

United States Court Columbia Circuit. District of

Argued April 1967.

Decided Dec. 1967.

Reargued En Banc Jan. Rehearing

On En Banc June Tamm, Danaher,

Burger, Cir- rehearing. Judges,

cuit dissented

sel, who had contact medical witnesses country. who had left The trial judge hospitalized was time hearing was held 1966 and the case was transferred to another for disposition. opinion quote In Part I of this we sub- stantially opinion the entire of the Dis- Judge July 8, 1966, trict rendered background presents facts and concludes prosecution appel- has shown Washington, Cohen, voluntary. Mr. lant’s Harold David confession to Scharff, C., opinion why explain D. with whom Mr. Laurent II J. Part of this Washington, (both appointed ruling D. in our C. view District Court’s court) brief, appel- apply on the this was for must be reversed for failure requisite lant. criteria A voluntariness. aspect further for the case reserved Miller, Mr. Asst. U. S. Edward T. banc en consideration. Atty., G. with whom Messrs. David Bress, Q. Atty., U. Frank Nebeker S. Attys., Palmer, I. and Allan M. Asst. S.U. brief, appellee. Mr. on the for Opinion The District Court’s Atty., Kenly Webster, Asst. U. Robert S. Appellant’s Confession Was appearance appellee. for also entered an Voluntary. Judge, and Bazelon, Before Chief substantially What follows is en- Judg- Leventhal, and Circuit McGowan opinion Judge: tire of the District es. July 1, hearing, “At Edwin Coppage, an officer Homicide LEVENTHAL, Judge. Circuit Metropolitan Squad, Department, Police opinion This considers voluntari- appeared defendant as witnesses. appellant’s ness of confession murder. appearing by deposition Also was Dr. There His case for the third Carlos Mena. us were received before hearing appellant time. evidence at Ex- On a 1960 indictment defendant’s 1, being Sibley degree hibit No. was the record convicted of first murder and concerning death, Memorial sentenced to in 1962 court defend- but this 28, judgment ant’s for admission on June 1960 and vacated and remanded 2, a new trial defendant’s Exhibit No. record because had been represented imposter-l of District of Columbia General Hos- a fraudulent pital respect awyer.1 judgment imprison to the A admission years for treatment the defendant ment to life on a between conviction discharge degree June from second murder affirmed was hospital August 1, court,2 Supreme said 1960. but in 1964 the judgment Court vacated our and remand Coppage “Detective testified proceedings ed further incon had been a member of Homicide opinion in sistent with its Jackson v. Squad Metropolitan Depart- of the Police Denno, day. decided that same night ment since 1953. On the of June 368, 84 S.Ct. 12 L.Ed.2d 908. responded police 1960 he call to a go evidentiary hearing Street, Eye voluntari- to the Unit Block confession, given ness at 66 N.W. At 10:45 arrived P.M. he Street, lying Sibley Hospital, Eye while he N.W. where saw ground Negro postponed request defense female at the coun- on the who July (No. 16387, U.S.App.D.C. Pea v. States Pea v. United United 1962). 324 F.2d 442 bleeding it to he met drove wife’s head. home. defend- There ant, First Precinct his wife and children several officers from the their drove Department. Virginia Metropolitan Police visited with friends. On returning precinct ad- Harold to the District of Columbia Cook of Private they stopped place Coppage prepared the female vised Detective at a suspect had to take and that a food bought out and there defendant had been shot Sibley Hospital. potatoes. french taken Memorial fried been to gun Eye they in the used Private had the Thereafter returned to Cook Street immediately shooting. Coppage to stopped the where defendant car and went Sibley attempted persuade Hospital, which to return Memorial his wife Capitol Upon and her do time located at North refusal to so and was him. N.W., approximately Street, M the statement that she did want 3% Eye Street, any from N.W. to talk to him about the blocks further matter, got she out of the car. Immedi- Sibley Coppage arrived at “Detective got ately defendant out thereafter the Hospital P.M. 10:53 Memorial around damned”, saying the ear and “die and be did not know At the time he he arrived the re- shot his times with several wife any shooting or circumstances of ground. Im- sult that fell to the she preceded of the had circumstances which mediately began cry children and shooting. directly He to the went upset He then shot the defendant. hospital emergency in the room and himself in the head. nurses, physician, two he a two found on police patient Coppage’s and who was officers a conversa- “Detective entire physician Tan.3 a Dr. table. was no more tion with defendant lasted patient minutes, during Coppage was defendant. At than five which emergency Coppage requiring questions time entered the asked several alongside standing yes room Dr. Tan was or no rest answer. The taking pressure. the defendant his blood form narrative versation was stated in taking completed When Dr. Tan Coppage the de- and the defendant. Coppage pressure asked Detective blood speaking tones fendant were in normal he could to the defend- during former if talk Dr. conversation and Tan, the entire him ant and Dr. Tan police advised other two two nurses Coppage room, to the table emergency could do so. went officers remained in the lying and on which defendant was which was feet X feet in size. covering gauze on he had a observed “Throughout the de- conversation upper part one as well as of his head being appeared Coppage as co- fendant eye. talking. herent and had trouble no “Standing two feet from defendant’s Coppage no alcohol Detective smelled face, Coppage him after conversed with defendant; he did not the breath of the advising police first offi- pain; and at no show cer. learned From this conversation he he did time did defendant state De- on K Street. that defendant resided speech all want to talk. Defendant’s Coppage that fendant informed Detective times was and medication normal no shot thereafter he had shot his wife and during the administered to defendant had related he himself. The defendant At time five minute conversation. no separated and that from his wife during the did Detective conversation evening obtained of June anything Coppage ordi- of the notice out Company breathing. nary car from Pontiac As the Star defendant’s longer Hospital 3. “Dr. Tan is District thereafter he learned that Columbia, hearing separate but at counsel Dr. Tan no recollection transpired for that he had the defendant advised record of what Philippine Sibley Hospital.” Is- located Dr. Tan in the [Footnotes Memorial lands; Dr. that he had transmitted have been renumbered to conform to Sibley opinion.] sequence Tan Memorial the records of this nothing above, Coppage right eye. Detective knew of the by signed The record is transpired that had before events Tan and in it he further stated and learned of them from defendant. that Dr. L. Williams was notified who in suggested calling neurosurgeon. turn “Following Coppage’s con- Detective pressure Defendant’s blood former 130/80 defendant the versation with the pulse and his was 60. Dr. Tan further inquired defendant of Dr. Tan if the that, stated in the record made him Hospital to D. C. could be moved General upon inquiry by police officers placing where there were facilities whether it would be safe to remove de- person guard, fa- under arrested Hospital, fendant to D. C. General he con- Sibley Memorial did not exist at cilities cluded that defendant could withstand again Hospital. took de- Dr. Tan then trip and that he was to be conducted pressure approved fendant’s blood Hospital by to D. C. General ambulance. Hospital. transfer D. C. General preferred He stated he the defendant “The D. C. General record re- in a moved an ambulance rather than ceived in evidence revealed that defend- wagon. police patrol Hospital ant arrived at D. C. General Coppage called for the then “Detective at Upon 11:40 P.M. on June Department’s Fire and when ambulance physical gun examination a small shot it defendant raised himself arrived right wound was discovered in the tem- sitting position he table to a from which poral defendant; right area of that his by helped ambu- was stretcher a eye light percep- was affected with no Coppage, lance quest at re- attendants. tion; eye with his left defendant could attendants, rode of the ambulance light objects; see and could differentiate ’ in the Hos- ambulance to D. C. General neurosurgeon’s that a re- examination pital, arriving 11:30 and between nothing significant. vealed A skull X- During trip 11:45 P.M. defendant ray Hospital made at D. C. General lay quietly. vealed the trace of the bullet from the right temporal region “Upon across the middle Hos- arrival at D. C. General orbit, line and immediately shows pital the bullet the left defendant was moved Upon more medial than emergency placed latteral. arrival to the room and there began defendant was conscious and alcohol on a four doctors ex- table where Upon odor amining was he detected. admission Coppage did him. Detective very history was confused and not listen to the doctors but instead went obtained from emergency him at the was that time out of the police room to advise he upon inflicted a head wound himself regularly stationed at D. C. officer and he that was resi- unable to see. The Hospital General of the arrival of neurosurgeon reported dent his that on defendant. Some minutes later Detective examination the defendant was conscious Coppage emergency to the room returned coherently. neurosurgeon and talked question- where the doctors observed resident detected ing an alcohol odor. the defendant and that defendant having answering ques- was trouble their “Dr. Carlos Mena was the chief resi- making tions doctors it difficult for the neurosurgery dent in Hospital in D. C. General to understand him. on June 1960 and at least Sibley Hospital record “The Memorial August 1, until 1960 when defendant was shows that on 1960 at 10:50 discharged June hospital. from the He now physical practices P.M. of the de- examination neurosurgery in Honduras. On presence gun shot September fendant revealed of a gave deposi- 1965 he his right temple. in the That record wound purpose hearing. tion for of this conscious, states that defendant was Counsel for the Government and counsel ambulatory right eye and coherent. The for the defendant read record into the vision, swollen, parts was devoid of tender was deposition they those desired painful. Palpitation and tense- revealed part have considered of the evi- ness and in the socket deposition fluid dence. Dr. Mena’s discloses Sibley when one Memorial about that he examined defendant morning critical here. his confession of June made two o'clock or approximately one hour after de- the defend- time he found 1960. At Sibley lethargic ar- fendant intoxicated. The confessed and ant Hopital. pulse D. C. pressure, rived at General blood defendant’s normal; respiration not in a he was uncontradicted “The evidence stands defendant state shock. The P.M. 10:53 P.M. between no, yes scious, questions could answer gave 28, 1960, de- on June defendant fluently. Mena but he could talk why tailed oral statement how X-ray revealed also testified that estranged This confes- wife. shot right temporal area and bullet in the who, Coppage made sion Detective destroyed right optic While nerve. defendant, noth- knew until informed concussion, had the defendant suffered ing of the fatal of the circumstances damage defendant’s was done shooting self of defendant’s wife or gun At the shot wound. brain Immediately before inflicted wound. deposition gave his time that Dr. Mena physician Coppage talked to defendant he stated that concussion approved Sibley him and had examined amnesia, produced but headaches and conversing Coppage defendant. the defend- did not state that immediately Again confession after actually either. ant suffered from physician defendant examined result that as a Dr. Mena also testified approved ambulance of his transfer the de- of intoxication and concussion Hospital. at Sib- While D. C. General lethargy, of but was in ambulatory, fendant a state ley Hospital defendant was any yes to or that he answer physical His conscious and coherent. questions put Mena ex- to him. Dr. him strength enable was sufficient to pressed opinion would that defendant sitting position on himself to a raise protecting himself be indifferent as to lying while he had been table where respect any question. he con- being the time at examined and beyond doubt find a reasonable I fessed. hearing at testified “Defendant confessed time he at the that defendant being in could not Sib- remember killing physically and was of his wife having ley Hospital nor of seen Memorial competent his confes- make mentally Coppage in- the Coroner’s Detective until voluntarily.4 so that did sion and he discharged quest after was sometime Hospital. from D. C. General findings of opinion shall serve as “This ques- of law fact conclusions appear that evidence “It would defendant’s of tion voluntariness at D. C. arrived sometime after defendant confession.” confused in a he was General making difficulty him- in had state and II. understood, although connec- that self Dr. Mena’s it that tion be noted Testimony Significance Medical (Defendant’s “Admitting Exhibit Notes” 1 on Issue Voluntariness 2) conscious that defendant was findings opinion coherently” “talk when and could Judge to establish one District are sufficient around defendant Mena examined the apparently 29, coherent morning appellant June or two o’clock confession, time condition of his 1960. But was defendant’s However, proof. finding standard voluntariness 4. “I make the beyond v. competency ease of States doubt Circuit United reasonable Fourth a authority ju (1965), Inman, it was held although F.2d in this 954 there is no Judge requiring convinced must be that a District such standard risdiction Denno, beyond the con- proof. doubt a reasonable v. Nor does Jackson voluntary.” 1774, 908] 12 L.Ed.2d fession [84 U.S. S.Ct. (1964) be the such shall declare that relatively conducted questions detective brief in- persons asked unfa- terview, while others in the room. hyoscine’s properties miliar with aas stigmata This does not serum,” case have the properties “truth if these ex- normally encountered in where vol- Any cases questioning by police ist. officers issue, untariness is an and the detective’s produces which in a confession fact generally conduct was reasonable product which is not the of a in- free light appeared of the as it situation tellect renders that confession inad- important excep- officer —with usually missible. The Court has so tion discussed below that he did not See, warn g., stated the test. e. v. Stroble suspect the arrested that his statements California, 181, 190 [State] might against used be him. [72 S.Ct. “If 96 L.Ed. : 872] petitioner the confession which made accept implicit We also what * * * involuntary, in fact findings Judge of the District * * the conviction cannot stand the time of had his confession And in cognitive Blackburn Ala- understanding [State] had what bama, done, U.S. [80 and that no indicia that are 242], 4 L.Ed.2d we held irrelevant his confession was not a reliable and improp- trustworthy happened. absence evidence of account of what purpose part ques- er required, however, More is tioning officers. There voluntary. show that a confession is interrogating offi- indicated must be shown that in fact the confessor thought cers the defendant sane when or a free will and intellect whether confessed, judged but we not the detective had reason doubt prob- fession inadmissible because the presence suspect its its absence. ability was that the defendant was in [Emphasis fact insane at the time. Plainly the free and intellect original. Footnotes omitted.] requisite under constitutional standards Alabama, In Blackburn v. State admissibility of a confession would U.S. 199 4 L. 80 S.Ct. 274 at negatived appel if it were shown (1960), Ed.2d the Court had said: drug. lant had taken a “truth” This was by in bar, made clear Chief Justice Warren In the at in- case the evidence 293, 307-309, Sain, disputably strongest Townsend v. establishes the (1963): 745, 754, probability 9 L.Ed.2d 770 Blackburn that was insane alleged- incompetent and the time Court Numerous decisions of this ly Surely present in confessed. the govern- have established the standards stage of our most basic civilization a ing admissibility confessions of justice by of is affronted sense into If an “will evidence. individual’s spectacle incarcerating of a human be- or if his confession was overborne” ing upon the of statement he basis product “the of a rational in- was not insane; judgment made while and this will,” confession tellect and free his difficulty can in without be articulated coerced. These is inadmissible because unreliability terms of the of con- applicable whether a standards are fession, lack of rational choice physical product in- fession is the accused, strong simply or convic- pressure psychological timidation system tion that our of law enforce- course, applicable and, equally are operate ment should not so as to take drug-induced It to a statement. advantage person in of a this fashion. imagine in a situation difficult less the Sain, confession would be which a However in Townsend v. intellect, reliability product expressly volun- free less of a Court ruled that brought drugs tary, about than when of a confession under would drug having permit of a “truth the effect dom- its use. There still significant objection that serum.” It is inant that the fundamental drug may conceptions process pre- and have been administered fairness of due ord elude confession. Town- contained hand-written Doctor’s use such a On Admitting including Notes, his claim his confession Neuro- send’s surgery Note obtained while under the influence written Dr. Mena: he was hyocine),5 scopolamine (also known as Pt. conscious—alcohol odor.—Pt. can serum,” often Supreme a “truth referred to as coherently.7 talk expressly (supra, Court of Dr. Mena testimony establishes U.S., 755)— at 309 n. appellant and lethar- was intoxicated produces scopolamine [W]hether gic Although he when examined him. confessions, if true or false confessions conscious, pressure, and his blood to make in fact Townsend caused pulse respiration normal, and were statements, statements were con- those bleeding, although was some not water stitutionally inadmissible. blood, eyes very and both swollen “were *** Appellant not under the influence sign edematous [with] drug. of a But his condition was truth big eye.” right especially hemorrhage, equivalent, as on free its far effect so right nothing eye, He could see with his concerned, descrip- according to a will is light only eye. a little with his left contained in tion of condition x-ray de- showed bullet had Mena, deposition of Dr. stroyed right optic nerve, become neurosurgery D. the chief resident implanted in the middle of skull. appel- Hospital C. General who examined damage There was brain but small shortly Dr. lant confession. after the pieces sprayed of bone and of were bullet Sibley Tan, appellant at who examined “definitely” over He had a the sinuses. the inci- had no recollection bullet, impact concussion from referring Mena’s dent. Before to Dr. means, Dr. Mena testified— as testimony we to commend the Gov- wish person moment, that the at that obtaining cooperation in its ernment for normal, day, even next cannot be testimony. depo- appears That normal condition. means sition is available because Gov- syndrome call that we of concus- paid fare ernment the difference sion, is, and lethar- little confused stop permitted in Wash- Dr. over Mena ** gic. He can have some headache. ington September than 1965 rather amnesia, can kind of in- He directly from a world turn Honduras jury, concussion. neurosurgeons Europe conference vice-president of Dr. Mena kind of at- was asked what which he attended Neurology. if titude would have Federation World reply questions, type asked what refer- testified after Dr. Mena Since give. would Mena answered: ring Hos- D. C. General the record of may put altogether 2,6 pital (Dft. first take I state of would Exh. mentioned, Emergency Rec- in- Treatment intoxication I first the note that physician, witness, physician police administered who is called as a 5. A had purpose drugs of al- which states: for and other leviating History symptoms being Present of Illnesses the withdrawal 28-yr. who, by ad- a c. experienced narcotics Pt. is old m. while a Townsend intoxicated, (372 killed his a wife with shot dict U.S. excerpt gun night 770). on of and then admission As L.Ed.2d upon above, quoted it with- inflicted head himself. deemed wound the Court conscious, pt. significance serium” On admission is has that “truth out person strong breath, properties order of alcohol his known to were not questioner. very administering drug and is confused. to obtain or the Unable any history patient except from that hospital stipulated rec- that It was since he he inflicted head wound any purpose admitted ords has been to see. unable by court. deemed correct apparently Clin- earlier also an 7. There is Record, a different handwritten ical

6B4 mentioned, I

toxication then the volition interact to determine what testi- mony give.” leth- cussion. in a he So was state Smith and Bowden lethargic; argy, 1, 3, that U.S.App.D.C. so it is state v. United anything. 879, 881, (1963). He an- he doesn’t care can 324 F.2d yes question or no to swer somebody make-up The of a free man in * * * he was asks indif- self-preserva cludes his mechanisms for pro- protect not to or ferent himself tion, speech may refrain from [Emphasis tect him. added.] endanger speak him. If does out his testimony medical statement is The admissible as reflection self-preservation Mena was defend uncontradicted. The his free ifwill his concussion, mechanism, impetus silence, ant’s bul condition of with a and its lodged head, pressures let him in his left coherent overridden within his own lethargic, personality, by conscience,religi but indiffer normal—and his own protecting duty, feelings, ent to con himself! ous sense such etc. But his dition does he free will and intel statement does not reflect his own free essentially lect ? Is he if different from will or intellect his statement is attrib speaks coherently man fully, utable critical who and truth measure to the fact that impetus self-protective negated but under of a truth his mechanism is fraud, or serum? overridden external force or insanity, compulsion a condition of A man’s free will and intellect neces- drugs. And we think it manifest sarily of choice.8 embrace freedom negatived his free will is if his likewise given may speak Whether a man out at a statement reflects the concussion time, may say, reflect what he shattering head, leaving bullet in his him him, tension of manifold forces within appearance with the external of coher moving speak, him to others to ence, but devoid of his normal will to speaking. frain from The number and protect himself and rendered indifferent quality complex forces are as these protect himself. ego emotions, man. and conscience Judge statement, any, physi- if result- District that is the reviewed the depend appellant’s ant cal condition, these forces will attributes of making kind of prose- stimuli before him inferences and the kind favorable to the person is, cution.9 He but is noble referred to but did not focus whether he significance general ignoble, particular on the of Dr. or on the Mena’s testi- mony occasion, reflecting concerning his statement defendant’s indiffer- protecting testimony choice, himself, ence to freedom of intellect, will and free free against stands in evidence uncontradicted If admissible on this record. distinguished Judge him. As from inanimate conclusion of the District prosecution statement, a testimonial wheth- established the con- presents voluntary er unique made at or before trial fession to be reflects a failure appreciate evidentiary signifi- of “an contribution the constitutional personality reported at- cance of individual human whose condition as will, memory perception, testimony, tributes it cannot stand. right process 8. The tion. constitutional All due is that shows privilege against prone and the self-incrimina raised himself person position right table, legs tion embrace “the of a on a and turned his around; speak got remain silent unless he chooses to the fireman and doctor on own in the unfettered exercise of his each side of him him laid on will,” Malloy Hogan, alongside stretcher Tan the table. Dr. 1489, 1493, appellant L.Ed.2d insisted that be moved from Sibley Hospital Hospital to D. C. General police in an ambulance rather than the Judge example, 9. noted Eor the District wagon. admitting Dr. Mena’s at (“can- not normal view his 636 hearing judge for a to not

unreasonable quire canee of the medical identify portions concerning to counsel defendant’s to indifference prior they request self-protection, taken record be but also of the lack of warning. into account. question A nature is of a different III. testify posed by failure the detective’s right appellant of that he advised Extent of Burden of Proof Prosecution’s opinion we remain expressly In our 1963 silent. stop cannot We with the reversal did ap- commented that record District order but must address Court’s not show that the detective warned pellant ourselves to the issue extent of of the might expected.” as “we prosecution’s proving burden vol- Supreme pointed v. out in Davis Court taking Judge, untariness. The District Carolina, of North State 740, Inman, note of United v. 352 F.2d States 895 86 16 L.Ed.2d (4th 1965), 954 Cir. found that voluntari- (1966), defendant the fact a beyond ness had been rea- established a ,his rights a was not significant “is warned appropriate sonable standard, If doubt. that is the considering in factor are clear record that on the made of statements later voluntariness fairly before us it cannot found be- be * * * weight gives added [and] yond a reasonable doubt that the confes- below other circumstances described voluntary, sion was must and a new trial involuntary.”

which made his confession introducing be held without the confes- general requirement for a warn- sion in evidence. ing rights ques- of constitutional before Appellee argues, however, cor- that the tioning person underscored is arrested standard, rect under Clifton v. United hospital in the ease a man in the U.S.App.D.C. 257, 125 371 F.2d pat- a bullet in head.13 is wound (1966), is whether the confession ent are down that such a man’s defenses “established to the satisfaction of out; warning might if and the voluntary Pressing court” as a one. for self-preser- impairment least offset of his affirmance, appellee urges that Dis- Assuming vation he has mechanism. trict Court’s determination of voluntari- permit minimum awareness which upheld ness can be if record would health,14 questioning, injury without support finding of voluntariness under assumption there can no similar be reject the lesser standard of We Clifton. under- man such condition would engaged this contention. We are stand used his statement appellate here in an reevaluation of evi- against him, leaving him to “choose free dence, reversing and in the District speak ex- free and unfettered Court’s determination mindful we are ercise of his own will.” requirement findings that its Plainly judicial determina “clearly fact be errone- sustained unless tion of take voluntariness vel non must lay ous.” The error of the District Court signifi- into account the constitutional appreciate failure constitution- Attorney judiciary, S. the Dis- Cong., U. for 85tli 2d Sess. police regarding (1958). trict lectured officers suspect interrogation hospital, in- 14. The detective testified that Dr. Tan structing police give advice right said was all the detective rights stating stitutional further: just appellant. to talk to Tan satisfy yourself man “You must taking pres- finished blood questioned being who is is not under seda- sure —which as we normal. know was tion, drunk, is not that he hasn’t been Presumably Dr. Tan’s remark meant words, hit on the head —in other questioning appllant’s would not worsen doing what action knows lie’s and his condition. voluntary Reprinted Hearings act.” Malloy Hogan, 8, on H.R. al. Before a et Subcom- U.S. mittee of the Senate Committee on L.Ed.2d 653

637 GOWAN, TAMM, significance helpless appellant’s LEVENTHAL and al ROBINSON, Judges, by sitting Circuit medical en state as revealed by any banc. record evidence. We unrebutted presume law that

cannot matter of as a Judge: LEVENTHAL, Circuit light prop- Court, a District sig- constitutional 20, er evaluation 1967, On December a division of testimony would nificance the medical this error court found in the District voluntary had (made have found confession determination Court’s 1966 applied it a standard. hearing pursuant Denno1 held Jackson v. Clifton mandate),2 Supreme Court’s to appears disposition thus voluntary. confession was case, appropriate including this an direc- The division went to rule that “it to of re- tion mand, the District in case Court fairly beyond cannot found a prose- be reason depend on whether the able doubt the confession was governed volun proof is cution’s burden of * * * tary ap if that is [and] standard. Inman standard or a Clifton * * * propriate standard newa trial dissent a be- was decided without Clifton introducing must be held hearing without had been cause of voluntariness hearing Denno, confession in evidence.” En banc prior held and the to Jackson v. by majority was ordered a of the active final. conviction become Clifton judges however, on their to disagreement, own motion decide panel was in involving whether reasonable doubt standard convic- whether, a ain case appropriate is yet final, one. could be tion not a confession hearing held at a held admissible when subsequent States, In Clifton v. United 125 v. Denno was to Jackson U.S.App.D.C. 257, (1966), F.2d 354 371 prosecution to be established denied, 995, 1312, cert 87 386 U.S. S.Ct. beyond voluntary A a reasonable doubt. (1967), 18 L.Ed.2d 341 court re majority judges court of the active jected order that in contention to be issue and have decided to consider the a admissible evidence confession must calling for order the court entered an has judge be found trial be volun hearing en banc. Counsel a on this issue tary beyond doubt. a reasonable We requested are address themselves and, pronouncement overrule that sought in the and the relief that issue light supervisory power exercise of our over in con- taken their contentions of federal administration criminal junction opinion. with this justice Columbia,3 in the District of hearing The cause is continued adopt judicial rule determina specified. en banc on issue tion that a is-admissible confession can So ordered. judge not be made unless satisfied beyond a doubt that the reasonable con voluntary.4 Rehearing fession En Banc On BAZELON, Judge, support Chief reasons Before our WRIGHT, adoption DANAHER, BURGER, Mc- rule set this forth question. 368, 1774, L.Ed.2d remain an academic Even 378 84 12 U.S. S.Ct. petition (1964), U.S.C. § under 28 2255 908 only by question making raise 571, (1964)1 1 2. 378 U.S. 84 S.Ct. today’s prior claim that decision the judge States, confession admitted a evidence 3. Cf. McNabb United ; notwithstanding (1943) doubt reasonable L.Ed. 819 87 may States, voluntariness. There 66 Fisher v. United U.S. Any petition § such A.L.R. such cases. 90 L.Ed. ; (1946) to the trial would be referred who (un- Tate v. United U.S.App.D.C. 261, F.2d 245 admitted confession unavailable) deceased less position clarify a con- standard is also would be Whether may requirement matter. now stitutional unnecessary Appellant’s ap- elsewhere,5 here it is to dwell case is on direct recognize, judgment Normally, peal. upon The is reversed and them. upon appel- chary imposing trial that manded with the instruction courts are applying quantita- judges lant’s confession not be in a the burden admitted determining in whether new trial. standards tive proffered But admissible. evidence is ordered. So places in law evi- there are some confessions, dence, outside domain BURGER, Judge, whom Circuit thought appropriate where it has been Judges DANAHER, TAMM, Circuit judge such that a should follow trial dissenting: join, certainly judges approach.6 Trial my for I dissent the reason in required by of courts a number opinion States, 125 Clifton v. United a confession determine voluntariness U.S.App.D.C. 257, (1966), 371 F.2d 354 beyond a neces- a reasonable doubt7 as cert, denied, 1312, 995, 386 U.S. 87 S.Ct. admissibility sary determining aspect of (1967), which, 18 L.Ed.2d 341 notwith in that rule as in evidence. We concur standing Denno, Jackson v. 378 U.S. public implementation a sound 368, 1774, 84 S.Ct. 12 L.Ed.2d 908 preventing involuntary interest (1964), majority now overrules with playing any part in a fessions respect govern proof to the standard of jury’s guilt.8 determination ing judge’s preliminary the trial determi- States, 5. See v. United 125 Clifton U.S. 838, (1965); N.Y.S.2d 204 N.E.2d 179 App.D.C. 257, 263, 354, 371 F.2d 360 Burke, State ex rel. v. Goodchild 27 Wis. cert, (1966), denied, 995, cert, 386 U.S. 87 244, (1965), 2d N.W.2d 133 753 (1967) 1312, (con 18 L.Ed.2d 341 denied, 1017, 1941, S.Ct. 384 U.S. 86 S.Ct. curring opinion); In United States v. (1966). L.Ed.2d 16 1039 See also United 1965); man, (4th 352 F.2d 954 Cir. (2d Feinberg, v. States 383 F.2d 60 Cir. cert, Yough, 587, A.2d State v. 49 N.J. concurring 231 1967), denied, 1044, 389 U.S. 88 opin (1967). 788, 598 (1968); Clifton 19 836 Wil- S.Ct. L.Ed.2d alternative, based, ion was also (5th Beto, liams v. 1967). F.2d 16 386 Cir. grounds, per on constitutional so Feinberg, upheld In the court haps necessary Inman, but it is finding of voluntariness when there was question in to resolve the constitutional possibility no “credible written supra. * * * See note case. 4 statement tutionally had been unconsti- coerced,” denoting language 869, g., Richmond, 6. E. v. Newton 198 Va. compliance with a reasonable doubt (1957) (blood 96 S.E.2d test evidence 775 standard. 383 F.2d at court 70. The driving prosecution); Harde drunk pre- procedure took occasion to detail the State, 115, man v. 216 Miss. 61 So.2d including Inman, the reason- scribed 797, declaration); (1953) (dying 802 standard, able doubt and to note State, Nev., Tucker v. 412 P.2d 970 essentially New this was the same (1966) (evidence prior crime); see hinting procedure, York without even supra generally Yough, State v. note 5 it found the reasonable doubt standard materials cited therein. questionable. F.2d at n. 10. 383 70 States, 7. Mullins v. United F.2d 258 382 'Williams, referred with the court also (4th 1967), reaffirming Cir. United procedure favor York includ- New Inman, (4th v. States 352 F.2d 954 Cir. requirement ing the the confession 1965) ; Beto, Cr.L.Rep. Fernandez v. 3 voluntary by must be- be found the court (U.S.DistCt., 6, 2005 N.D.Tex. March yond a 386 F.2d at 18 reasonable doubt. 1968) ; Ragsdale, 420, v. State 249 La. n. 2. cert, denied, (1966), So.2d 427 385 187 1029, 758, 123, U.S. 87 S.Ct. L.Ed.2d 17 v. Bruton United 391 U.S. (1967); Keiser, (U.S. May 1620, v. Minn. 676 State 274 20 L.Ed.2d 476 88 S.Ct. 265, (1966); 1968); Pierce, 31, 20, 143 N.W.2d 75 Lee v. Pinto v. 389 U.S. State, 716, 192, (1967) (per 112 236 Miss. So.2d 254 19 31 88 S.Ct. curiam) ; L.Ed.2d (1959); Longmore, Georgia, State v. Neb. 178 Sims v. State of 385 509, (1965); 538, 639, 134 N.W.2d 66 State v. L.Ed.2d 593 U.S. 87 17 S.Ct. (1967); Denno, Yough, (1967) ; A.2d N.J. 598 Jackson v. 378 U.S. People Huntley, N.Y.2d 12 L.Ed.2d for which is not hint of of a confession. even a of voluntariness nation beyond anything go need. demonstrated no need to There is except to offer that was said in anomaly Clifton It is indeed a remarkable general observations. judge, passing the law that a trial evidence, admissibility piece of a First, than call does more Jackson by any particular quantitative do so “re- procedure insure a Why standard. not sufficient voluntariness determination liable jurors ” the trial be convinced that * * * Id. issue reasonably conclude the confession added). (emphasis at 1786 voluntary beyond a reasonable doubt? Mr. stopped in the face of Court jurors, judge, The not the are the ulti- astringent to the dissent Black’s Justice system. mate is triers under our This court failed define effect elementary admissibility an rule on the judge proof by of which trial burden variety of an of infinite evidence initially voluntariness must determine has been so centuries.1 jury’s presence. Id. at 404- out 405, in Thus neither 84 S.Ct. 1774. appellate court, No federal other with nor recent confession in Jackson more single exception one,2 imposed has Supreme has the Court made cases doubt in this reasonable standard spell ab- a standard as effort out context. All have others either avoided adopted. now One solute as one problem entirely,3 or established some might Supreme well consider qualitative standard consistent with against adopt- Court sub silentio decided ing judicial experience sound and far less standard the reasonable doubt stringent adopt.4 than what we now grips come to with the its own refusal to supervisory powers The use our problem. court now—without Yet this impose unique and this unwarranted experience waiting body de- for a proof misconception burden of purposes is a velop into under rush Jackson—elects supervisory powers. of our As only Supreme four Court an area years ago we in noted Clifton deliberately avoided. It could it not done because was this judges [i]n the future trial will be prescribe a prepared standard for ad- evaluating only those utterances missibility already is passed barren accused which have through gamut screening logic experience the whole support in either cert, 1966) , denied, 994, majority points true, 386 U.S. S.Ct. in as out 87 1. 1312, (1967). opin- 6, 18 L.Ed.2d 341 rare instances are some note that there cases, however, sug- ions in quantitative not these do standard has where a gest passing admissibility, whether the issue imposed was raised or- such in suggest briefed. dying declarations, but I these as majority rule, as cases do not reflect Feinberg, 60,. 4. v. United States 383 F.2d Tough, pointed v. N. in 49 out State cert, (2d 1967), denied, 70 1044, Cir. Moreover, 587, J. 231 A.2d 598 788, 88 19 L.Ed.2d S.Ct. 836 just majority say suggest how I many “dying (1968) (independent judicial determina court cases this declarations” ; tion) States, F.2d Fisher v. United 382 years. in hundred last one gossamer has had 31, 1967) (“clear (5th 34 de Oir. cut sup rely strand to To port record); termination” on the Moser v. (9th is a confession of law rule of States, F.2d Cir. United 381 363 concept bankruptcy ma utter cert, 1967) , denied, 389 88 U.S. (1968); adopts. jority now L.Ed.2d 850 Evans 19 States, (8th States, v. United 375 F.2d 360 382 F.2d 258 2. v. Mullins United 1967) (“unmistakable clarity”). 1967); Cir. Feinberg (4th v. In States United Cir. Beto, 1965). (4th man, and Williams v. 386 Cir. 352 F.2d 954 (5th 1967), States, F.2d n. 2 Cir. F.2d 18 v. United Kristiansand pro 1967) ; court refer to the York v. did New (5th States United Cir. 1967) (7th in trial makes a cedure which the Taylor, Cir. F.2d 753 preliminary however); determination of voluntari (citing Inman, Wakaksan v. using (8th ness the reasonable doubt standard. Cir. F.2d 639 United jurors Mallory, pretrial processes McNabb, to restrict what processes outlined safely to see and hear. Massiah, can be allowed Miranda. Escobedo, judges, trial prospects are that now say, again, that I fair to think it is overburdened, much otherwise probably least, part, Mr. what passing on the be overworked mind Justice Black must have confessions of the few voluntariness pointedly said: in Jackson he when application of survive the which will Finally, important, and even more these cases. doctrine new constitutional Court’s me, U.S.App.D.C. is, F.2d seems Denno] [Jackson extraordinary supervisory strange Our one consider when we only for over- powers be exercised should Constitution both the United States (Art. riding need, we should cases such and the New York Constitution find 1, 2) by jury much if we concerned too crimi- trial establish § here, charges safeguard But must break with tradition. a bedrock nal confessions people’s usable number of The reasons the given by liberties. vanishing point, dwindling to the down- for this the Court overriding. present, grading by jury appear alone need let remaining to me is of trial challenge cases in those few of the But soundness consequences apply, great jury it will which faith in trials. Founders’ Implicit obviously require- be to make convictions guilty in these constitutional yet jury to secure even difficult more a belief that ments of juries trial is fully described when the accused has to decide factual can be trusted Stating criminal act a confession details fact issues. obvious satisfying capable of twelve which jurors, beyond is “it a reliable determination doubt, as reasonable which satisfies the voluntariness issue that one rights hold voluntariness. We now defend- the constitutional * * judge usurp (emphasis the historic role of ante, p. must ant jurors. concludes, supplied), twelve how- the Court ever, jury’s finding this that a another manifesta- This case is but question inherent unre- is tainted tendency happily court of a tion this — judgment liability. making this widespread appellate courts—to unreliability juries, about the syndrome Frank follow Jerome —a believe, Court, fact I overlooks the thought profoundly mis- school long ago the Constitution itself finding juries,5 prefers fact trusts juries are made the decision can more one conclusions whose be trusted. readily upset by appellate judges. (Black, 378 U.S. at 84 S.Ct. at Since the Constitutional mandate J., dissenting). jurors explicit twelve cannot be directly evaded, juries mistrust manifests I consider are to be trusted gradually away chipping they itself at the return as much when verdicts jury function, constantly requiring guilty they in- an accused free. when set arrays creasing special judges instructions Jurors do not need to act.m loco multiple ;parentis. fence their discretion and Frank,

5. J. 108-145 on Trial Courts notes appellant was, inter that the record states Hospital indeed, merely D. alia, “ambulatory.” O. General stated that That w"ord appellant appears Sibley record, an inser- as “can move all extremities.” testimony point appellant’s District Mena’s one as to note that at We ques- Judge was re- that the dition rendered after he had commented critical appellant’s Hospital viewed the D. C. record is the of General tion determination admitting Sibley prior notes, to which contains re- hour his condition at —one opinion: Hospital, flected in the District Court’s at D. C. General his arrival by prior “Pt. conscious—alcohol odor.-—-Pt. can hours to the examination two Judge coherently.” However, talk Mena. the District Dr. found did find that the condition finding In that view the lack of a appellant left indif- Dr. Mena—that was appellant’s Sibley condition at dif- was protecting reason ferent himself ferent from reflected in Dr. Mena’s that together with intoxi- the concussion testimony, we must take the conclusion Sibley at cation—-was not in existence appre- of the District failure Court as obviously Hospital. concussion was significance of ciate the constitutional Sibley present since resulted testimony, accordingly that must gun prosecution of- wound—and the verse. impact no evidence its fered medical that significance at would have of less been Appellant argues that the “to- Dr. Mena Sibley an hour later. than tality including but circumstances”'— concussion characterized the effect appellant’s limited to head wound— appellant’s in- as As “immediate.” requires a conclusion that the confession toxication, the D. C. General voluntary. appellant’s was not Thus strong on alcohol record odor of shows a urges counsel us to into account the take ac- The detective who breath. Negro appellant fact that was a companied appellant state was able to 9th-grade schooling, that uncon- knowledge appellant drank that his own testimony psy- tradicted trial of the chief beverage during interval no alcoholic chologist at St. Elizabeths related that Sibley D. C. Gen- and arrival at between past appellant time in suf- Hospital. is no indication eral There organic damage, fered brain and that negative Judge District that mere functioned when “as a de- tested mental testimony detective, de- I.Q. degree,” fective of with an moderate Sibley, was of alcohol at tected odor top group. It is of the moron objec- impartial and taken to override doubtful whether these facts satisfy record,10 hospital so as to tive brought hearing to the attention heavy resting prosecution on the burden judge.12 Accordingly are not dis- we to establish voluntariness. posed rely them, just on did not we finding place opinion Nor can Court’s reliance in our the District ground inquest supported fact that at the coroner’s the de- voluntariness be testimony inapplica- question- Dr. tective testified he had to Mena’s was cease that testimony ing appellant detective’s to his Al- in view the “due condition.” ble though Sibley appellant “coherent- talked voluntariness is a matter to be that at out, already pointed record, Dr. ly.” determined on it is not As have whole police normal”), testified not be that 10. At officer anc! trial concus- syndrome, appellant lethargy, dazed at time he sion included whiskey intoxication, appel- A when added left arrested. bottle bystander protect lant A testified “indifferent to himself.” his feet. found just drinking appellant had been 12. The announced at the start of the Appellant shooting. testified after hearing going that he was not all read drinking since he had that afternoon. transcript hearing of the trial and the ^ should conducted like a trial de novo. Presumably, however, Dr. Mena he would fluently. permitted reading talk, but not of trial could ap- testimony. already per- Although noted Dr. Mena was aware As evidence, coherently reading testified mitted the pellant talk contradiction, deposition. clearly, Mena’s and without

Case Details

Case Name: Emanuel Pea, Jr. v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 19, 1968

Citation: 397 F.2d 627

Docket Number: 20433

Court Abbreviation: D.C. Cir.