378 F.2d 799 | 3rd Cir. | 1967
Lead Opinion
OPINION OF THE COURT
On the morning of October 2, 1965, a fire was discovered in the residence of Alexandra Manson in the Smithfield
In their investigation into the death, the police learned that the deceased had employed a gardener or handyman who was known as “Baje” or “Bajun” (a nickname given to natives of Barbados). The man in question was identified as Fitzgerald Lovell, and the police ascertained that he was living with an elderly gentleman named Albert Skeet.
The relevant times and dates regarding the apprehension of Mr. Lovell and the events that followed are muddled and unclear from the record and were a source of disagreement at the argument of this case. Mr. Lovell’s chronology finds the most corroborating evidence in the record; and for our purposes, his recitation of the events and times will be accepted. According to him, he was asked to accompany police officers to police headquarters on Thursday afternoon, October 7th. At police headquarters, he was turned over to Immigration officials as an “overstay”
Upon his return, the police sought to question him whereupon he became frightened and irrational and fainted.
Lovell’s November 19th statement, which is devoid of culpable admissions, was, in part, read into the record at his trial. From a jury verdict finding him guilty of murder in the first degree, Lovell has appealed. In addition to his contention that his constitutional rights were violated by the admission of his statement into evidence, he urges numerous other errors.
The first and perhaps most substantial question raised is the admissibility of the statement given by Lovell to the United States Attorney. We assume for the purpose of resolving this issue that the statement constituted a confession and, as such, is governed by the rules relating to the admissibility of confessions. Cf., Miranda v. Arizona, 384 U.S. 436, 444 (1966). Appellant’s challenge to admissibility is two-pronged; his first contention rests on the Constitution, while his second basis for exclusion is grounded on the Federal Rules of Criminal Procedure, 18 U.S.C., and the Rules Governing the Virgin Islands Municipal Court, 5 (App. IV) V.I.C.
The Escobedo standards, however, are applicable since this case was tried subsequent to the date of its decision. In that landmark case, the Supreme Court held:
“that where * * * the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment * * 378 U.S. at 490-91.
The Government contends, though without much vigor, that Escobedo does not apply to appellant’s interrogation on November 19th because the case was in the investigatory, as opposed to the accusatory, stage at that time. We cannot agree; the record clearly demonstrates that the investigation had focused on the appellant. A search warrant had been issued on October 8th to permit a search of Lovell’s belongings. The thoroughness of the police investigation of Lovell’s activities prior to his November 19th interrogation, revealed by the type of questions asked him and buttressed by the testimony of the police at the trial,
Having decided that Escobedo applies, we must determine whether Lovell was adequately advised of his rights and intelligently waived them. There is no issue here •concerning United States ex rel. Russo v. New Jersey, 351 F.2d 429 (C.A.3, 1965), vacated and remanded on other grounds, 384 U.S. 889 (1966), and whether a request for counsel is necessary before Escobedo can be invoked. The transcript of the interrogation, the pertinent parts of which are reproduced below,
The record discloses that Lovell was adequately advised of both his right to remain silent and his right to counsel. While the United States Attorney did not explicitly state to Lovell that “ he had a right to remain silent,” he was told no less than four times that he did not have to answer any questions. In addition, he was told that “one of the reasons you do not have to answer any questions * * * [is that] any answer you give could be used against you in a court of law * * *.” Lovell was also advised that he was free to consult a lawyer.
Having decided that Lovell was properly advised of his rights, we must now consider whether he intentionally relinquished or abandoned them. Johnson v. Zerbst,
Appellant’s other argument for the exclusion of the statement rests on Rule 5 of the Federal Rules of Criminal Procedure and Rule 123 of the Rules Governing the Municipal Courts of the Virgin Islands. Both rules provide that an arrested person should be taken before a judicial officer “without unnecessary delay.” He contends that these rules were violated and cites Government of the Virgin Islands v. Solis, 4 V.I. 615, 334 F.2d 517 (C.A.3, 1964); Mallory v. United States, 354 U.S. 449 (1957); and McNabb v. United States, 318 U.S. 332 (1943), for the proposition that his statement was therefore inadmissible.
Lovell maintains that he was held for more than forty days before he was questioned by the United States At
The record fully supports the conclusion that he was validly detained pending a deportation hearing; and that after he was given a hearing and ordered deported, he was legally held pending deportation. It was during the period he was awaiting deportation that he was questioned. The legality of his detention at the time he was questioned has not and cannot be disputed on this record, and that fact alone is dispositive of the issue before us. Even if we concede that he was being detained primarily to further the police investigation into the death of Mrs. Manson, the condemnation of this practice and the resultant inadmissibility of the statement enjoys only minority support on the Supreme Court. The case on point is United States v. Carignan, 342 U.S. 36 (1951). There, as here, the criminal defendant was detained on charges other than those on which he was eventually convicted and from which he was appealing. Carignan’s argument is identical with the one made here — that regardless of the legality of his detention, he should have been taken before a commissioner “without unnecessary delay” and that his confession obtained beyond that time was inadmissible. The Court held:
“One cannot say that this record justifies characterization of * * * [Carignan’s] confession as given during unlawful detention. * * * He had been arrested and committed for the assault .perpetrated six weeks after the murder. His detention, therefore, was legal. * * * This case falls outside the reason for the rule [Rule 5], i.e., to abolish unlawful detention. * * *
* * *
■ “We decline to extend the McNabb fixed rule of exclusion to statements to police or wardens concerning other crimes while prisoners are legally in detention on criminal charges.” 842 U.S. at 43-45.
With regard to Rule 123 of the Rules Governing the Municipal Courts, 5 (App. IV) V.I.C. Rule 123, the result must be the same. We recently pointed out in Rivera v. Government of the Virgin Islands, 6 V.I. 155, 375 F.2d 988 (C.A. 3, March 30, 1967) (slip op. at p. 3) the similarity of purpose between Rule 123 and Rule 5 of the Federal Criminal Rules. We noted that the purpose of the preliminary hearing was to determine whether there was probable cause to detain the suspected person for the grand jury or trial. Since Rule 123, like Federal Rule 5, is also aimed at unlawful or illegal detention, Lovell’s lawful confinement prevents his invocation of it.
The next issue is whether the Government should have been required to produce an investigative report filed by the chief investigator. The request for the production of the document was made after the investigator had testified on direct examination, and the ostensible purpose for the request was to enable the defense to attack the witness’s credibility. The specific question raised is whether the Jencks Act, 18 U.S.C. § 3500, is applicable to prosecutions instituted by the Government of the Virgin Islands. The Government argues that the Jencks Act cannot apply to such prosecutions simply because the statute applies only to those prosecutions “brought by the United States.” The fallacy of this reasoning is that it overlooks the his
In Jencks v. United States, 353 U.S. 657 (1957), the Supreme Court exercised its supervisory power, in the absence of Congressional legislation, to prescribe procedural rules for the administration of criminal justice. Congress, fearful of the far reaching consequences of that decision, saw fit to enact limiting and clarifying legislation. The result was the so-called Jencks Act. See Palermo v. United States, 360 U.S. 343, 345-48 (1959).
The Virgin Islands Legislature has expressed no view with regard to the production of documents for the purpose of impeaching Government witnesses in prosecutions initiated by the Virgin Islands. We are not, therefore, presented with the difficult questions of whether the Jencks case perforce applies or may be applied to such prosecutions and whether the Virgin Islands Legislature, like Congress, has the power to override the supervisory power of the Supreme Court.
As an appellate court having jurisdiction over appeals from criminal prosecutions brought by the Government of the Virgin Islands, we also have supervisory power. We believe that the legislative gloss placed on the Jencks case by Congress in enacting 18 U.S.C. § 3500 has resulted in a sound rule. Policy and logic dictate that such a rule should obtain in all criminal prosecutions in the Virgin Islands. See Government of the Virgin Islands v. Solis, 4 V.I. at 620, 334 F.2d at 519. Moreover, the application of the Jencks Act to territorial criminal prosecutions is not without precedent. The Act has been applied in such prosecutions in the District Court of Guam since 1959. See Taitano v. Government of Guam, 187 F.Supp. 75, 78 (D.C. Guam, App. Div. 1960).
Appellant also objects to the district court’s denial of his request to open to the jury after the prosecution had presented its case-in-chief rather than immediately after the prosecution had given its opening statement. 5 Y.I.C. § 3631 provides that after the jury is impaneled and sworn and the Government opens “the defendant, or his counsel, may then state his defense, and may briefly state the evidence he expects to offer in support of it * *
There can be no question that the conduct of the trial should be in accordance with the above-quoted statute. However, the statute should not be rigidly binding on either the court or the parties. Deviations from it should be allowed when proper reasons are presented to the court, and the course charted by the court should not be disturbed on appeal absent an abuse of discretion. Having the full transcript before us, it appears that counsel’s desire to postpone his opening rested on his hope to exclude much of the damaging testimony the Government would offer. Though we might conjure up a persuasive tactical basis for counsel’s request, he never detailed any reasons
Of the remaining issues, the only one which we will discuss at length concerns a jury instruction. The court charged that if the jury found that the defendant’s exculpatory statements (as read into the record from his interrogation) were false, it could consider this as circumstantial evidence pointing to a consciousness of guilt. Neither party has cited nor has our research disclosed any case decided by this court which approves such an instruction. Nevertheless, for the reasons hereafter listed, the instruction was correct.
An extrajudicial statement given to police authorities, if constitutionally obtained, is usually admitted into evidence under the admission exception to the hearsay rule. There are, however, instances where the questions asked are simply denied. If they are denied without any explanation, they are inadmissible, for they fall within no recognized exception to the hearsay rule.
“fabrication * * * is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not apply itself necessarily' to any specific fact in the cause, but operates,*436 indefinitely though strongly, against the whole mass of alleged facts constituting his cause.” II Wigmore, Evidence § 278(2) at 120 (3d ed.).
The instruction given by the court was taken verbatim from Mathes & Devitt, Federal Jury Practice and Instructions § 8.14 at 99-100 (1965 ed.), and, as noted there, enjoys widespread acceptance in Federal criminal cases.
We have considered the other issues raised by appellant and conclude that no error was committed by. the district court in any of the instances discussed.
The judgment of the district court will be vacated and the cause remanded for disposition not inconsistent with this opinion.
The testimony is uncontradicted that Lovell had violated the terms of his admission to the Virgin Islands (as a visitor for pleasure) by accepting employment, that the Immigration office had asked him to voluntarily depart some time in June, and that he did not depart the Islands as requested.
No issues, constitutional or otherwise, were raised either at the trial or here concerning these events.
It is the duty of the United States Attorney to prosecute local offenses in the name of the Government of the Virgin Islands. Revised Organic Act of 1954, Vol. I (Historical Documents) V.I.C. § 27 (1966 Supp.).
If the case must be retried, it is clear that Miranda must be applied. See Gibson v. United States, 363 F.2d 146 (C.A.5, 1966).
“Mr. Christian [United States Attorney]: * * * Therefore, before I ask yon any questions, I want you to know that you do not have to answer any questions I ask here unless you want to. When the legal officers are investigating any crime, any person whether they suspect them of being involved or not, does not have to answer any questions. If, however, I ask you any questions and you choose to answer, I am going to have Mrs. Rivera here write down the questions and whatever answers you give. She will type it up sometime, and we will then let you read it, and if you cannot read, we will read it to you and ask you if you are willing to sign it. One of the reasons you do not have to answer any questions, any answer you give could be used against you in a court of law if it turns out that you are involved. Under our system of government, any person can consult a lawyer. If you do not want to answer any questions before you consult a lawyer, that is up to you. I would like to ask you a few questions. If you know the answer, will you answer.”
“Mr. Lovell: Yes.”
Our finding on this issue distinguishes this case from United States v. Slaughter, 366 F.2d 833, 840-41 (C.A.4, 1966).
We do not believe that the viability of Carignan as precedent has been weakened or destroyed by Escobedo or Miranda. Their respective rules spring from different bases. Escobedo and Miranda both involve constitutional proscriptions, whereas Mallory-McNabb is a result of the Court’s supervisory power. Though it is true that the former will control the latter, we have found no constitutional violation here. We also note that Carignan was cited in both the majority and dissenting opinions in Miranda without any indication that its precedential value had been weakened.
The general rule is that if the statement is comprised of both exculpatory and inculpatory remarks, all of the statement is admissible. Annot., 2 A.L.R. 1017, 1022-29 (1919), supplemented by 26 A.L.R. 541 (1923). As noted in the above annotations, uncontradicted exculpatory statements may be binding on the prosecution. See Opper v. United States, 348 U.S. 84, 91-92 (1954).
A similar instruction has been approved by the Seventh Circuit Judicial Conference, La Buy, Manual on Jury Instructions in Federal Criminal Cases, 33 F.R.D. 523, 592-94 (1964). The present rule appears to have been derived from the Supreme Court’s language in Wilson v. United States, 162 U.S. 613, 620-21 (1896). It has been accepted in the following courts of appeals:
1st Circuit: Dirring v. United States, 328 F.2d 512, 515, cert. denied, 377 U.S. 1003 (1964).
2nd Circuit: United States v. McConney, 329 F.2d 467 (1964); United States v. Bando, 244 F.2d 833, 842, cert. denied, 355 U.S. 844 (1957); United States v. Simone, 205 F.2d 480, 483 (1953).
5th Circuit: Andrews v. United States, 157 F.2d 723, 724 (1946), cert. denied, 330 U.S. 821 (1947).
6th Circuit: Stanley v. United States, 245 F.2d 427, 433 (1957).
7th Circuit: United States v. Inciso, 292 F.2d 374, 380, cert. denied, 368 U.S. 920 (1961).
8th Circuit: Rizzo v. United States, 304 F.2d 810, 830, cert. denied sub. nom. Nafie v. United States, 371 U.S. 890 (1962).
9th Circuit: Corey v. United States, 305 F.2d 232, 238-39 (1962), cert. denied, 371 U.S. 956 (1963).
10th Circuit: Word v. United States, 199 F.2d 625, 626 (1952), cert. denied, 345 U.S. 936 (1953).
D.C. Circuit: Beck v. United States, 140 F.2d 169, 170 (1943).
Concurrence Opinion
concurring
Since the judgment is being vacated and the cause remanded for further proceedings, I would on remand require additionally a preliminary hearing before the district judge to determine whether appellant’s statement was given
It may be conceded that appellant is a man of adequate intelligence and that he apparently comprehended what he was doing when he answered the questions put to him by the United States Attorney. But the question to which I address myself is not appellant’s intelligence or comprehension. The issue that remains is whether he was a free agent or was so in fear that the trial judge should have ruled that despite the caution of the United States Attorney the statement was inadmissible because the government did not carry its burden of proving that appellant had voluntarily waived his constitutional rights to remain silent and to consult counsel.
Appellant was a native of Barbados who had been informed by the immigration authorities that he must leave the Virgin Islands because he had violated the terms of his visitor’s permit. As a result of the police investigation of the murder he was taken into the custody of the immigration officials on October 8,1965, for not having departed voluntarily as he was supposed to have done. But he was not questioned by the United States Attorney with regard to the murder until forty-two days later, on November 19, 1965, after he had been given a hearing the day before on his deportation.
I find it difficult to believe that a man situated as was appellant, in custody for approximately a month and a half under the threat of deportation, voluntarily waived his constitutional rights to remain silent and to consult counsel when he was questioned shortly after the immigration officers had held a hearing and ordered him deported. One in the position of the appellant could hardly have drawn nice distinctions between the immigration officers who controlled the dreaded deportation threat and the prosecutor. For the prosecutor to embark immediately
Of course, if the district judge had passed this problem in review and decided that the government had carried its burden of proof the case would, for me, be different. I do not believe that this element was considered by the district judge, and absent a finding which included the element of the intimidation of fear as well as the incomprehension of ignorance, I am not prepared to say that the conclusion that appellant waived his constitutional rights to remain silent and to consult counsel is established by the evidence.
Instead the United States Attorney undermined the caution on the rights to remain silent and consult counsel by immediately following it with questions which related to and emphasized the pendency of deportation.