*1 507 finding fоr nothing order” service further fore cannot us. Jon use deliberate eva- necessary perfect was to service is void process right. sion of basis for his own Pennsylvania argument under law. The is mockery To do so would make a of the Act. Pennsylvania that under the al- statute2 Having found that district court lowing by any service on non-residents properly grаnted corpus the writ habeas of reasonably method give calculated to actu- Cynthia, necessarily to it follows that the notice, “including publication,” al the court determining court of erred had to order his wife’s counsel to take Pennsylvania grant- order void step perfect some additional affirmative to ing directing its mandamus trial cоurt even every- service if the court found that boy to return the to Jon. thing reasonably give could be done to Appeals We that the assume for done, actual notice had been ef- and the Supreme the Fifth District will Judicial va- already completed forts reasonably 14, cate its 1984 June order 219th give Respon- calculated to actuаl notice. County. If District Court Collin it does Pennsylvania dent cites no cases not, a writ of mandamus issue. will construction to substitute service rules, and our independent search has un- permit- No for will rehearing motion none. covered ted. 2080(a)
Pennsylvania Rule contemplates “special
that a order” find that service
(as order) of the date of the been
perfected through already the efforts com-
pleted. a somewhat similar child custo-
dy proceeding in sought which the father service, Pennsylvania
to avoid Supreme
Court has held that effective service on the aсcomplished by his new wife’s father FOSTER, Appellant, Evan Bruce accept refusal service on her and her v. subsequent statement to him at- about the Texas, Appellee. tempted service. The STATE rel. Commonwealth ex McKinney McKinney, 1, v. 476 Pa. 381 No. 285-83. (1977). A.2d Texas, Appeals Court of Criminal did carry showing Jon his burden of En Banc. Pennsylvania order was void. Under Code, sеction 14.10 of Family the Texas 11, July 1984. properly granted Cynthia’s trial court writ corpus. of habeas right
Jon seek to assert his
temporary custody upon of David the fact boy has Jon’s exclusive
possession for than six We more months.
rejected a similar contention in Rush (Tex.1984).
Stansbury, Kidnapping Parental
The Prevention Act § 1738A, U.S.C. was enacted
prevent type be- of situation we have Explanatory
2. Codified Note the new PA.CONS.STAT.ANN. under rule Code). 5346(a)(4) (Purdon 1981) (Judicial 2079(c) Pennsylvania’s § Rule makes it clear courts, January Pennsylvania effective governed by "special service under order” Judi- prеsent dates in relevant 5346(a)(4) Cynthia’s time of § after cial Code at the adopted special proof service of service order. custody rule 1915.- actions. PA.R.CIV.PRO. *2 Dallas, Gibson, appellant. P. Michael for Weaver, Wade, Henry Atty., R.K. Dist. Davis, Christopher Gregg L. Milner Huttash, Dallas, Attys., Dist. Asst. Robert Austin, Atty., for the State. State’s FOR ON STATE’S PETITION OPINION DISCRETIONARY REVIEW CLINTON, Judge. was re
Appellant’s conviction
theft
by
aр
court
versed
remanded
peals
648 S.W.2d
Foster
1983).
(Tex.App.
After review
— Dallas
record,
opinion
court
we are of
result
appeals reached the correct
confession,
ille
finding a
after an
obtained
arrest, to
gal
be inadmissible.
argues
petition,
the State
finding that
wrong
court
“inter-
an
occupation was not
vening
attenuating
vеning
circumstance”
the taint
Judge Campbell
circumstance.
Appellant
arrest.
was a for-
finds
wished to confess because a
was,
police officer
attorney
driving
mer assistant district
who
testified that while
station,
the time
said “he felt better
practicing
of his
criminal
caught”
“put
now that he was
and he could
lawyer. Certainly lawyer
defense
*3
all this” behind him.
cognizant
signifi-
be more
than most of the
cance of
warnings,
Miranda
but his under-
However, the
a
circumstances as whole
standing would bear on the threshold Fifth
support Judge Campbell’s
do not
conclu-
question
Amendment
of the voluntariness
sion. The fact it took several hours and
of the confession.
It is well settled that many shufflings from room to room before
wаrnings
Miranda
alone do not make the
police
inculpating
obtained an
state-
sufficiently
product
“act
of free will to
appellant
ment belies the conclusion that
break, for Fourth
purposes,
Amendment
eagerly awaiting
was
opportunity
an
to
the causal connection
illegality
between the
confess. The record establishes that when
and
Illinois,
the confession.” Brown v.
he arrived at the
police
central district
sta-
590,
422
2254, 2261,
tion,
U.S.
95 S.Ct.
45
attempted
an officer
interrogate
to
(1975);
him;
State,
L.Ed.2d 416
see
appellant
Green v.
615
said he did not wish to make
statement; rather,
(Tex.Cr.App.1981.)
S.W.2d 700
he wanted to see his
later,
Wes Reed.
Sgt.
Sometime
assuming appellant
even
had Parker,
ap-
а homicide detective who knew
enlightened
an
understanding of Miranda
pellant, came to the
explained
station and
warnings,
(1)
three considerations remain:
to him that Jim Barclow from the District
temporal proximity
of the arrest and Attorney’s
had
Office
asked him to come
confession; (2)
presence
personally
appellant.
over and
talk
Ap-
to
circumstances;
(3)
and
purpose
and fla
pellant
speak
said he wished to
to Wes
grancy
of official misconduct.
things might
go
Reed. Parker said
Green, supra.
The fact
was a
lawyer
well if he talked
Appel-
to his
first.
lawyer
necessarily
did not
determine the
lant
he
talking.
said was not interested in
lapse
time
between arrest and confession After
this conversation he was taken
equip
nor
him
coping
with official mis
across the hall and left alone for about 30
conduct, and the record reveals no inter minutes. Then he was taken back to Par-
vening events.
again
ker. Parker
said he had
been
touch with Jim Barclow and he wanted to
We note here that
ap
the court of
appellant.
discuss the
Appellant
case with
peals concluded
“intervening
that an
cir
discussed
facts of his arrest with Par-
something
cumstance must be
occurring
again
ker and
said he wanted to talk to
after the arrest and before the confession
again
Wes Reed. Parker
said it would be
any
to break
causal effect.” To obviatе
better
Appellant
to talk to Reed later.
was
confusion,
point
we
out that an event
again taken to a room and left alone for
circumstance need not
“occur”
approximately 30 minutes. Then he was
arrest,
but rather it must mani
taken back to Parker. Parker
him
told
Jim
itself so as significantly to intervene
fest
going
charge
was
to
Barсlow
and thus attenuate the
taint of an
“they”
and
were more interested in
Illinois,
generally
arrest. See
Brown v.
getting
up. Appellant
the matter cleared
supra;
York,
Dunaway v. New
442 U.S.
finally gave
testified he
the confession be-
200,
2248,
(1979);
99 S.Ct.
510
Indeed, may
overtures and tactics.
it
illegally
confession was
obtained as bаsed
against
have
him
so,
worked
because the
an
if
on
apparently made him feel as if he were one
sufficiently
illegality
to remove
attenuated
them,
merely
arrest was
a “matter
Illinois,
taint
422 U.S.
under Brown v.
up.”
needed
be cleared
Because he 590,
(1975),
95
forts
rights.
to assert constitutional
separated
first
“Brown’s
statement
Therefore, we find the court of
by less
illegal arrest
than two
from his
in
appeals
concluding
was correct
hours,
intervening
no
and there was
burden
showing
State did
meet its
of
significanсe
event of
whatsoever.”
statements,
appellant’s
hard on the
arrest,
illegal
of an
were admissible.1
difficulty,
heels
Justice
compounding
Further
However,
appeals
not de
court of
did
Dunaway, supra,
Brennan in
observed:
ques
whether
admission of the
termine
broke the connec-
“No
events
er
prejudicial
tioned confession cоnstituted
petitioner’s
deten-
tion between
appellant’s
ror
of
convic
requiring reversal
”
tion and his confession.
State,
tion.
5H Gant, sions. The word “event” has opinion been defined that the defendant occurrence, “something happens; developed this desire to confess between noteworthy happening.”2 The word “cir- the time arrest and cumstance” can mean “a state of af- confession. fairs.” compelling Even more is this Court’s de- interesting It is to note that the cision in Coleman v. opinion instantly, apparent attempt in an (Tex.Cr.App.1982). In Coleman the de- difficulty, resolve this states: “To obviate fendant was arrested at approximately 1:00 confusion, point we out that an event copy a.m. and was handеd a of the arrest or circumstance need not ‘occur’ given warrant. He was then his Miranda but rather it must mani- warnings. way police theOn to the station fest itself as significantly so to intervene cry defendant started to and ask if and thus attenuate the taint an illegal body. found the The arresting offi- arrest.” pg. 509. I [citations omitted] cer quiet asked the defendant tо remain concur in reasoning wholeheartedly, wait to talk about it at the I but observe that opinion, later station. On the station footnote, majority, in a returns to the no- the defendant sobbed and said: “I didn’t tion that an event must break the “connec- it,” want to do “He made me do it.” tion between detention and confes- arresting officer asked the defendant pg. sion.” at 510. I surmise that *5 if he would the concepts these two show where the peacefully could coexist jurisprudence within our if victim adopt weapon we would and the murder were locat- analogy the of Justice in Stevens his con- ed. The defendant led the to the curring opinion i.e., in Dunaway, weapon explain murder and started to what that a confession by motivated a happened. had Later at the police station prearrest event such as a visit with a min- gave the admitting defendant a statement ister, I urge my and brethren to do so. he shot the deceased. The statement was In (Tex.Cr. Gant v. concluded Judge Dally, at 6:55 a.m. writ- App.1983),the author majority opin ing plurality, oрined: for a ion in the finding instant that “In the appellant case at bar the had attenuated, taint of the arrest was given warning Miranda several observed that: times before he made his state- “Thereafter, it, appel- we understand ment. He indicated he understood his talking lant started about events leading rights and them. period waived The time up killing and a record sec- from the arrest until the confession was retary attempted to write it down in completed only about five hours. longhand, appellant but when became only intervening circumstance was dissatisfied with procedure he volun- body weapon. search for the proceed teered to and did write However, in contrast with Duna- rest оf his statement in his own words— Taylor, the police officers in the consuming three-and-a-half legal size probable case at bar cause to arrest pages ....” appellant engaged were not reading It is obvious from a Gant purposeful flagrant in official mis- Judge significant Clinton found it that the conduct. defendant was anxious to It is confess. aрparent also this was one of the “Additionally, appellant’s determining factors considered in initial taint of the remarks other arrest was attenuated. statements were not certainly apparent But it is not through from the initiated interrogation but Collegiate Collegiate 2. See Webster’s Ninth New Diction- 3. See Webster’s Ninth New Diction- ary, page ary, рage 430. by ap- any spontaneous remarks even before formal confession was ob- by any peace pellant. . tained officer. This state- by appellant ment was shown to have This concluded that the confession spontaneous statement, been a in re- was not obtained as a result of the unlaw- sponse any interrogatiоn, and almost ful detention of the defendant. Coleman, supra. identical to that in such, Although labeling it as it is “put view of desire to apparent Judge Dally found it to be me,” can it behind be said that there is significant that the defendant in Coleman rational nexus between the arrest of the confess, anxiety was anxious to and this subsequent intervening was considered tо be an cir- both oral and written confessions? Certainly cumstance. it cannot be said ap- would concede that this that the oral confession was some- itself pellant, being lawyer, a criminal “would be intervening how an circumstance as that cognizant more than signifi- most of the prog- term has been used Brown and its warnings, cance of Miranda but еny. understanding would bear on the threshold striking- The facts in the instant case are question Fifth Amendment of the voluntar- Coleman, ly supra. similar to those in At pg. 509. of the confession.” iness pretrial hearing suppress on a motion to Carrying interesting specu- exercise in appellant, the written confession of the conclusion, latory gymnastics logical to its Sgt. Dеpart- Parker with the Dallas Police school, appellant, while in law fared interrogation ment testified about the studies, nicely in Fifth Amendment but subsequent given by appel- confessions staggered degree pursuit to some Immediately prosecution lant. the elusive Fourth Amendment. appellant’s attorney and the concluded judge I believe that the trial the case Parker, Sgt. their examination of the trial that, judice ruling far in sub went too be- judge conducted his own examination of cause the was a such pp. Parker. [SF. 30-31.] circumstance constituted *6 you “THE Let me ask what COURT: that, more, the taint of without attenuated the demeanor of Mr. Foster was. Was I that this arrest. submit status nervous, cool, calm, upset; he collected? is a circumstance which be con- very “THE WITNESS: He was re- sidered, among many majority others. The there, got laxed and at ease when he Brown, supra supports opinion in the no- Judge. friendly, very He was casual. elicited are not tion that the four factors there, “He—on the to the officer nature, talismanic in when Justice Blaсk- now;’ T he said feel even better said ‘I’m opines: single dispositive.” mun “No fact is caught, I I really glad got feel holding majority To the that an going put better that I am this be- circumstance, event or under Brown very hind me’ and he seemed relaxed. actually occur after progeny, need not up- “THE seem COURT: Didn’t to be arrest, I the footnote in the concur. Tо lawyer,4 set because of where he was: a and de- majority that further obfuscates ready getting put jail any- ante, concept and to the tracts from the thing of that nature? recognize appel- refusal of the No, “THE WITNESS: sir. He told me lawyer as a criminal lant’s status had called a and he was that he under circumstance of attenuation going sure to come down and I dissent. make his bond.” Coleman, DAVIS, ex- DAVIS and TOM G. W.C. JJ., MeCORMICK, opinion. join in this pressed a desire to confess to the crime attorney experience as an assistant district 4. The record reflects that the able attorney, practicing County Attorney’s criminal law as a licensed Office. in the Dallas District private practitioner, received consider- and had