379 F.2d 130 | D.C. Cir. | 1967
Lead Opinion
This is a very simple case which might appropriately be affirmed by a summary order except that the factual setting assumes some importance in light of the dissent.
The evidence showed that the complaining witness had been robbed in his office at gun point by Appellant. After the robbery the victim jumped out a window 12 feet to the ground and, crying “holdup”, pursued the assailant. He found Appellant being held at bay by two other citizens who had taken up the chase. Appellant was being held at gun point and had been disarmed. Witnesses testified that Appellant offered to return the stolen money to the victim, who declined, saying the police would want it as evidence. Witnesses for the government also testified that when the police arrived, Appellant handed over the money, saying, “Here is the money, here is all of it,” and that he “did it.”
Appellant was taken to the station-house, where he was given warnings, the adequacy of which are not questioned; here Appellant told officers he was “going to plead guilty and throw himself on the mercy of the court because he only had one record of arrest.”
Appellant took the stand in defense and denied committing the offense and denied making any of the incriminating statements attributed to him. He said he “panicked” when the complainant chased him and fled because of this.
There is dictum in United States v. Inman
A remand would call on the District Judge to decide on the voluntariness of statements which Appellant insists he never made. We are not prepared to assume that Appellant would give a different version of the facts in a hearing now conducted by the District Judge.
Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954), teaches that “there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s [alleged] disability to challenge his credibility.” The Supreme Court there allowed impeachment even though the impeaching evidence had been “illegally secured.” A fortiori testimony under oath voluntarily given by an accused at a non-jury hearing to suppress evidence is at least as admissible as evidence “illegally secured” by the Government. See Jones v. United States, 362 U.S. 257, 261-262, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
In short, if the Appellant on remand testified that he had indeed made incriminating statements but that these utterances were coerced, he could surely be impeached by his testimony in this case that he had made no such statements whatever; the trial judge might draw the disagreeable inference that Appellant was lying on one of the two occasions and hence would be free to disbelieve him. Similarly if an accused testifies in a non-jury hearing to suppress evidence, his testimony at that hearing may be used, at the very least, to impeach later contrary statements.
We do not rest solely on the futility of remand. Appellant never contested the voluntariness of the statements and never asked for a hearing on voluntariness; we see no basis for a remand to afford him an opportunity to make a claim he has heretofore eschewed.
Affirmed.
. 352 F.2d 954 (4th Cir. 1965).
. The dissent intimates the majority opinion is based on a “presupposition” that a defendant will testify at the nonjury hearing on voluntariness. This is not a presupposition but a fact-reality that it is almost impossible to conceive of a defendant making out a case of an involuntary statement unless he takes the stand. Pyles, cited by Judge Bazelon, is a case where the accused failed to make out a case of involuntariness. The dissent speculates on a theoretical concept unrelated to the realities which trial judges must deal with. The majority opinion does not posit impeachment as inevitable, but rather as a likely reality.
. Neither Lee v. State of Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1948), nor Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964), is to the contrary; these cases do not treat with how the finder of fact may consider a defendant’s contradictory testimony. A witness is always free to make statements which contradict prior utterances, but a fact finder who evaluates his credibility may take inconsistencies into account.
Dissenting Opinion
BAZELON, Chief Judge
With respect to appellant’s statement to the police officer when he was cornered in the alley, I would follow the procedure set forth in the opinion of the United States Court of Appeals for the Fourth Circuit in United States v. In-man.
The duty of the court to act sua sponte in determining the question of volun-tariness is implicit in this court’s decisions in Proctor v. Anderson
Contrary to the majority’s presupposition, a defendant need not testify at the voluntariness hearing; he can rely upon the testimony and cross-examination of other witnesses to establish coercion.
But even if, as the majority asserts, a defendant’s inculpatory testimony at the hearing could be the basis for his impeachment at trial, the Supreme Court has long since given him the right to so testify. In Lee v. State of Mississippi
Since the court affirms the conviction, it would serve no useful purpose to discuss the admissibility of the other statements made by appellant.
Accordingly, I respectfully dissent.
. 352 F.2d 954 (1965).
. 124 U.S.App.D.C. 103, 361 F.2d 557 (1966) (per curiam).
. 121 U.S.App.D.C. 283, 349 F.2d 718 (1965) (per curiam).
. See, e. g., Pyles v. United States, 124 U.S.App.D.C. 129, 362 F.2d 959 (1966), where only the arresting officer testified at the voluntariness hearing. It is true that “to substantiate a defendant’s contention that his confession was involuntary, it is generally necessary for him to take the stand.” Wright v. United States, 102 U.S.App.D.C. 36, 45, 250 F.2d 4, 13 (1957). (Emphasis supplied.) But this means only that normally a defendant may find it difficult to establish coercion in the absence of his own highly relevant testimony, not that his testimony is essential to the hearing itself. Cf. Jackson v. Denno, 378 U.S. 368, 389 n. 16, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) ; United States v. Carignan, 342 U.S. 36, 38, 72 S.Ct. 97, 96 L.Ed. 48 (1951).
. 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1948).
. Lee v. State, 201 Miss. 423, 435, 30 So.2d 74, 75 (1947).
. 332 U.S. at 745, 68 S.Ct. at 301. It is significant that the Court found it unnecessary to decide whether the defendant had in fact admitted during his testimony at the hearing that he had made the confession. See id. at 744 n. 1, 68 S.Ct. at 301.
. 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964) (per curiam).
. Id. at 45, 85 S.Ct. at 176, quoting Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).