Herbert Smallwood v. Warden, Maryland Penitentiary
367 F.2d 945
4th Cir.
1966
Check Treatment

*1 945 SMALLWOOD, Appellant, Herbert

v.

WARDEN, MARYLAND PENITEN-

TIARY, Appellee.

No. 10205. Appeals

United States Court of

Fourth Circuit.

Argued April 6, 1966. Sept. 26,

Decided 1966. Merrill, Baltimore, Md.

Abel J. (Court-assigned counsel) [Gordon, Fein- Rothman, Baltimore, Md., blatt & on brief], appellant. for Atty. Oken, Mary- Fred Asst. Gen. (Thomas Atty. Finan, land B. Gen. of Maryland, brief), appellee. on Judge, HAYNSWORTH, Before Chief Judges. BELL, and BRYAN and Circuit Judge: BRYAN, ALBERT V. Circuit judgment A conviction sen- imprisonment tence of life for murder passed upon October 1953 Herbert Smallwood, jury verdict the Cir- Maryland. County, cuit Court of Charles appeal taken, No but vacation sought conviction and sentence was through statutory courts reme- State 1 corpus, petitions dies for habeas Thereupon petitioned all to no avail.2 the Federal district court in Baltimore January 2, corpus. Haynsworth, Judge, 1964 for habeas Circuit dissent- ed. grievance mainly

presses reception in evidence at trial, objection, over of his his counsel’s incriminating oral confession. The alleged statements been in- are to have through psychological pressure, duced cluding suggestion of mind. relief tinged illegality This is said to have process. trial and robbed thus it due plenary The District Court after a hear- ing voluntary appeals. denied the writ. Smallwood decision, Since the District Court’s Carolina, Davis v. State North 384 86 L.Ed.2d Act, Warden, Uniform Post-Conviction Procedure 2. Smallwood v. 231 Md. seq., art. (1964). 645A et § 3 Annotated Code A.2d 244 Maryland (1957). *2 Wilt, “Having facts, 1966) developed (June 20, this these on from certiorari Brown, Trooper court, with Lieutenant Cole- down. The has come Deputy man, and and Sheriff Cox State’s facts found Court there took the Attorney Barbour, house a to the accepted and drew went the lower courts May contrary from them— P.M. on [about 17] ultimate inference product occupied with brother confessions were the Smallwood “that the Robert, suspect. opinion noted also As The who was a a will overborne”. duty house, they approached an had “make the Smallwood the Court the them; upon out, walking independent the ulti- came toward determination Following seeing officers, went behind of voluntariness”. the mate issue up- enjoined house, shortly reappeared procedure-prescription the us, assaying and on facts as found around corner of the house the the Judge other we think disclose walked toward them. the the District While Smallwood, invalidating approached Deputy in Small- an involuntariness men behind the wood’s confession. Sheriff Cox searched Luger house, pistol, and found a fairly facts, completely stated and The brought group it to in front the the Court, were these: District and house. Smallwood was arrested operated a Wheeler, who “Clarence police car, the of- taken where the house from distance saloon a short on his ficers noticed certain stains Rob- his brother and where Smallwood They his shoes and shoes. searched lived, in the beaten to death ert $83, including blood-stained two 17, 1953, morning May early in the twenty-dollar bills, intro- which were living The quarters saloon. behind the duced evidence at the trial. set afire. place then ransacked cap “A which Smallwood said be- Mary- “Sergeant of the Wilt Walter longed to his had brother Robert been (then trooper) be- Police land State found at or near the scene of investigating gan 6:40 murder at crime, so also Robert was arrested. May 17. He learned m. on a. brothers taken to of- were pistol Luger mon- and some automatic Attorney fice the State’s ey ransacked from the had taken been County ques- House Charles description premises. obtained by Wilt, Coleman, tioned there Cox had pistol who from approximately Barbour for four it Wheeler. sold hours. scene “While Wilt was May “On was re- tip by crime, given an approximately m. newed at 9:00 a. It provided previously had informer who m., p. continued until 4:00 leading so- to the information reliable around break noon for lunch. At The informer lution of a murder case. p. 4:00 m. Smallwood was taken back Herbert Small- Wilt to cheek on told County Jail, given to the food and al- wood, began develop in- and Wilt lowed to rest. The noted cer- activi- formation about discrepancies tain stories had knew that Smallwood ties. Wilt Robert, recently Smallwood and his brother and had a criminal record suggested them take lie discharged penal from institu- been detector tests. Both men indicated had that Smallwood He learned tion. willing. p. At m. previous drinking been placed Smallwood was in a car evening around and had seen Wilt, Coleman,. brother, Cox with his midnight at commun- a tavern Cooksey and and Sheriff taken to ity where Wheeler Washington. Smallwood knew that Small- Wilt also learned lived. being brother were taken a T-shirt washed had had wood Washington purpose morning of hav- after sister’s home ing the detector tests taken. Dur- murder. ing trip, case, which lasted about an whom Smallwood ‘wouldhave half, to, hour and a there was little or no to look to handle the case for him questioning. Maryland’, The brothers were taken and that Smallwood Metropolitan Headquar- to the Police should McCarty tell him the truth. m., Washington p. ters about 8:30 left the room while Wilt talked to *3 questioned where by further Smallwood for about 20 minués. officers m. until 12:15 a. “Wilt testified at the trial that aft- 19th. At placed that time Smallwood er the lie detector test he told Small- custody Detective wood that ‘in view of what the ma- Washington McCarty K. James of the shown, chine had and in of how view police, who asked Smallwood certain feel, heart, he must crime preliminary gave questions and then mind, and on his . . . if he that him a lie detector test after Smallwood get could heart, but that off off signed indicating had a statement that mind, he would feel better’. Small- he had been advised of his constitu- wood asked Wilt what more want- rights taking tional and was the test ed when the had machine the answers. voluntarily.4 Wilt told him that would like a him, statement from and when Small- test, of the Small- “At the conclusion wood indicated to Wilt that he would lying about wood was told that he was McCarty make a statement Wilt called key certain elements the crime back into the room. At that He re- that he should tell truth. being solely Smallwood admitted re- plied had that ‘the machine the an- sponsible crime, for the but still enough’. swers and should At that be things sisted that there were certain m., ques- about tioning a. after further about the case that he could recol- not by McCarty, Smallwood lect. denying stopped that he was involved statement, McCarty “After this ask- McCarty crime and told willing ed Smallwood if he to tell any he did not have recollection story Maryland to other offi- murder because too drunk he was to agreed. cers and Mc- Smallwood McCarty remember. informed him Carty Cooksey, called Cox and Cole- that he had to have a recollection be- room, man into the and Smallwood cause otherwise the lie detector would very made a statement similar to the registered physical not have reactions McCarty just one that he had to questions. McCarty made to certain asked speak and Wilt. Smallwood if he would like Maryland policemen to one of the request McCarty, “At the Small- telling if he would feel like more agreed story wood to tell the to his truth to indicated them. Smallwood brother, and he stated in his brother’s Troop- that he would like to talk with presence solely responsible that he was Wilt, stating er that he had been sorry. for the crime and that he was McCarty very nicely by treated him. McCarty asked tell his Smallwood to called in and Wilt told Smallwood brother he treated from how had been charge that Wilt was the officer the time he was ‘until the arrested “4. Smallwood testified this Court to Smallwood. His brother testified at during McCarty hearing the lie detector test told during this him period questioned ‘he should have his head beat in like being above, the dead man did’. As noted any no one had him threatened during Smallwood not a credible witness. No time. doubt the lie detector testify any did not threats when he test there was some discussion about crime, the stand the trial while nature of the this Court finds considering Court was the admissi- the evidence insufficient to show that bility of the oral confessions out of the threats were made to [Oth- Smallwood.” presence jury. McCarty testified er footnotes have been omitted because unnecessary.] trial that no threats had made deemed present’, opinion that he ‘In and Smallwood said this this examiner’s good gold’. patient seriously defective delin- ‘had as been treated danger quent who is real to so- if he then asked Smallwood “Wilt recognized ciety. If our law give willing written would be principle partial responsibility, oral effect as the to the same statement might deficiency his mental well just made, and he had Small- statement mitigating circum- considered agreed However, once this. wood do However, stance. from a social started, the written statement point poten- it increases his view the officers indicated to malignancy; consequence, tial and in continue not wish to did certainly it would seem an unneces- sign state- did want sary risk release had the facts he ment which set forth *4 community, any at time in the fore- already them. told seeable future.’ Washington “The psychologist who also clinical “The completed sometime between agreed with Dr. examined Smallwood m., and 5:00 a. and Smallwood intelli- that Smallwood’s Guttmacher County. theOn taken back to Charles very gence re- In his defective. signed of a state- afternoon the 19th he port stated: he by prepared ment Wilt to the effect during brought structure had been well treated ‘The character he immature, crude, by interrogation, his he had not out tests is any inadequate. promises, basically re- and His offered rewards or and any likely impulsive in that he had been threatened actions are

way. attempt extreme, self- at with ****** interpre- discipline. Several Roschach inkblots tations Mudd, Esq., “Mudd DeSales [F. violence; quality on thus have a by appointed court counsel the State II his head Card he sees ‘a cat with at the defend Smallwood] testified off,’ running from cut ‘blood with hearing in had been this Court neck,’ III, a human and Card disturbed at the trial Smallwood’s spot’ it. head ‘blood next with a apparent lack there- of concern. He any lacking quite This is requested psychiatric examina- fore principles restrain moral that would tion before sentence. Dr. Manfred S. acts, aggressive him from antisocial Guttmacher exami- conducted such an strong prospect of and there is September nation Dr. Only con- in his behavior. violence Guttmacher concluded: expediency of immediate siderations very young boy ‘This is colored act would deterrent. seriously intellectually and defective general impression aof is ‘The probably can best be classed as low * extremely * * mental defective with an grade moron. makeup, primitive, hostile character patient ‘This has sufficient intel- great capable of a deal violence capacity lectual the differ- know lacking to con- and motivation right wrong ence between form to social norms.'” consequences realize the nature and findings Abridged, that: reveal these sug- of his acts. Our examination gests interrogated (a) an amoral individual while Smallwood was very primitive custody police, for functions at of the in the constant strong May level. There 4 hours on the afternoon of evidence begin- aggressive, 1953; overnight, antisocial drives after detention apparently keeps ning poor questioned con- under 9 a. m. he was doubt, capacity trol. No hours forenoon and afternoon May trol these is further lunch break at noon reduced suspension p. at 4 use alcohol. m. for rest food; p. at 7 m. he was taken to Wash- The facts here fail to demon ington, lasting C., approximate- trip D. theorem, owning strate this even the nec ly hours, essary legal one and one-half and then sub- proof. inexactness Coer jected immediately question- to further cion of utterer lurks them. within ing, including test, .the detector The scene was not one where silence throughout night, speech, continued until or avowal, disavowal or was a m.; about 4 or ready option. 5 a. At least does record not confer that conviction. (b) Without it Smallwood submitted “lie to the we confession, cannot honor the and we test, detector” at the conclusion of which do not. operator he was told of the device lying”, apparent “he refer- As the admission of this evidence at ence to the indications of the machine. deprived defendant-petitioner trial process, judg- due must we vacate the capacity, (c) mental au- Smallwood’s passed upon ment sentence him. To “seriously diagnosed, thoritatively this end we reverse the order of the Dis- high grade defective”, or classified as low denying petition. trict Court grade Although the find- moron. not in will case be remanded with direc- ings, testimony undisputed disclosed that Maryland tions that be allowed a reason- years Smallwood was 23 old opportunity retry Smallwood, able fail- offense, a tobacco farm laborer *5 ing which the District Court shall issue grade 5th and able to education corpus its writ of habeas for his release only simple read words. custody from under indictment. Design for decision here has been Nothing said, however, pre- we have shall laid out in Davis v. of North Caro State holding the State from clude lina, supra, 1761, 737, 384 U.S. 86 S.Ct. proceedings or under such civil 895; Haynes 16 L.Ed.2d v. State process may by provided as its laws 1336, Washington, 503, 373 U.S. 83 S.Ct. persons for the detention of found to be (1963); 10 v. L.Ed.2d 513 and Culombe dangerous public safety, as the 1860, Connecticut, 568, 367 U.S. 81 S.Ct. testimony medical in this case describes (1961) ; they uncompro- 6 L.Ed.2d 1037 Smallwood. misingly rejection of dictate Reversed and remanded. confession. The context in statements were uttered declared is there HAYNSWORTH, Judge (dis- Chief by Supreme inherently Court as senting) : conclusively imputing almost overbear- Smallwood was convicted in 1953. Un- ance of the declarant’s volition and will. prevailing, der the standards then there Admittedly, while the in circumstances question is no but that his confession coercive, the cited cases were more involuntary properly was not and was ad- instant escape confession cannot Supreme missible. If Court had taught demnation those decisions. taken review, case direct it would Reiteration of their facts add noth- would have affirmed the conviction.1 ing here. Our concern is their thesis: that, admissible, to be eight the confession years Some to ten after Small- product essentially must be “the an conviction, Supreme wood’s Court be- free and gan unconstrained choice”. apply stringent more standards.2 Arizona, 1. Thomas v. State of 356 U.S. Supreme case would have reached the 390, 885, 863; 78 S.Ct. 2 Ash- L.Ed.2d Court. Utah, 426, down v. State of 357 U.S. 78 1354, 1443; S.Ct. 2 L.Ed.2d v. Crooker Connecticut, 568, 2. v. Culombe 367 U.S. California, 433, State of 1860, 357 U.S. 78 S. 1037; Haynes 81 S.Ct. 6 L.Ed.2d 1287, 1448; Ct. 2 L.Ed.2d Cicenia v. La- Washington, 503, v. State of 373 U.S. 83 Gay, 504, 1297, 357 U.S. S.Ct. 1336, 513; 2 L.Ed. 10 L.Ed.2d Davis v. 2d 1523. Carolina, These eases were in 737, decided North 384 U.S. 86 S.Ct. 1958, appeal 1761, well after direct this 16 L.Ed.2d 895. Court, Supreme Moving were responsively to of need ments a sense against op- develop protections length effective indicia coercion. some evolving police practices, pressive stand- one, interrogation principal but the involuntari- ards for the resolution of appear to have the confession does not applied question ness with an product. been its The confession was creasing Finally, stand- those exactness. direct and immediate result of belief and, supplemented to a ards have been large detector had revealed displaced, extent Miranda’s3 He the truth.5 falsehoods and disclosed ap- not to be new standards. Miranda is had had to that test. consented case,4 plied retroactively to this nothing sought assistance, outside principal question appeal is what him the had or said to been done create answering applied standard is to be impression could done not have question of That involuntariness. stand- general confession, ard not so uncertain in its so After the had wished. formulation; difficulty verbal arises our treated he told “had his brother he necessity practical- out of the to deter- good gold.” as mine the dimensions the rule record, the circumstances On the whole we are to measure the conduct those far milder than case are in this case. which the Court has gauge the dimensions is cut to If the pronounce- involuntary,6 to overturn prescribed recent the most Arizona, afternoon, Later, when 3. Miranda 384 U.S. the next v. State ed. practices any imagined L.Ed.2d 694. coercive effect 86 S.Ct. signed dissipated, statement had Jersey, 4. Johnson v. of New State mistreated or been abused he had not any 882. 16 L.Ed.2d 86 S.Ct. way. question- comparison the facts actions 6. close Without *6 Smallwood’s Supreme ing shortly indicate Court cases with do not thereafter in the relevant and overbearing can rest no conclusion broken was those this case his will that test, assumption upon police. An detector foundation. the lie a firm Until after slightest pressure guilt. Davis, stoutly The exten- the his after denied that he unlawfully against impermissible speak questioning, and back- the to is even sive ground evidence, incriminating coercive, regardless physical it was exert- of when of circumstances, un- uttered him to waver. He ed and under what did not cause components and to the crime. nature to link himself warranted. “The not a word concerning police dealings problem, prior it does were the of with His overtly security, standing good liberty consent had better be him in His stead. critically than smothered made examined to detector test was take the lie assumptions.” by unanalyzed atmosphere, v. after a three- Culombe a noncoercive 568, 578, Connecticut, period during he had 81 S.Ct. rest hour test, take the 1865. fed. His desire to recognized years Through release, it has been thus seems the beat it and secure may police enough, use a certain amount with its that the but when faced clear immediately yet pressure, negative coer- of free of unlawful almost be results he implicated As late as 1964 it was said himself. This indicates that cion. product validity some that his confession the of the re- was may high degree pressure test, fairly fairly “a ren- sults of the dered, detector applied [Supreme] the Court to be before and not claimed have been here ‘involuntary.’ term the confession not induced to will coercive. That he was length rulings interrogation of the Court buttress such talk the or The any overbearing reemphasized by use a conclusion. It has held that psychological pressure subsequent action of certain tac- Smallwood’s to the two require first, agreed does not oral confessions. At tics for limited time to a. officers, resulting dictate a sign of a statement to the exclusion confession. transcript just accused, it, police may illegally but after this detain the procedure began deny changed rights, mind to him of fail warn or proceed. to refused He was not a mal- him sarily overbearing without neces- access counsel toy doing anything police Spanogle, leable want- his will.” gauge pattern finding here, ma- is cut to If District Court’s gauge, for jority applies still narrower Supreme cases, confes- earlier Court conflicting rec- inferences which the arguably In coerced. sion not even disregarded supports rela- and the ord are decision, group or accept- tively are mild indicia of coercion decisions, Supreme in the Court which Supreme ed No in the as conclusive. case pro- can to have foreshadowed be said approach. commanded that Court has scription procedures followed “dictates” No case in the police appellate finding in this case.7 an coercion here. 7. No 73 S.Ct. issues ple have highly relevant to the decision of coercion ing *7 by less effective must be also conceded to the ing decision, police.” Despite it is inconsistent 1953, means are needed to Each of them lief after effective believe was an lieved intended to extract a role. they extended greater submission to now vis, but cumbed Smallwood ficers at a time and the with the interim. ficers substantial driving stretched out over a 32-hour the after about twelve questioning. “Both Stein and In The Use Nothing appears Culombe Miranda State the of State of New may prove we deal with coercion stop Haynes, of its knew them 1953. each was upon parole where contrast, he beat the lie in that his detention are not They suspect. Courts, pressure the 1077, formal pre-Miranda to detail interrogation. Here, suspect sleeping different cases tried begins is not to bargain has truth, officers. the language of Coerced carried out was part or Culombe. rival that understood that pressure 97 L.Ed. easily In the case of impropriety. In each then had “[Wjhatever changed ceremony presided subjected the effect pre-Miranda the facts with the of this time he mounting pressures Cooper than was Smallwood. Vand.L.Rev. and each in the treatment hours with the times. But York, make cast by detector. That be- It also is true that of Culombe is still confession, said: eases. subsequent that was limited to an in- 1522, a number of of- received would soon end theory their duties as case this Confessions They of much of confessed in those Stein v. Peo- 346 U.S. obviously Miranda the stupidity, but different of- premise intermittent I finally police reasonable decided Cooper, standards. reason need villainous question- eating did infinitely too, we of meek applied. by Da- regard- period, to its spent cases, noth- that, can- over only 156, was suc- will not be- a lowing morning, by Watts v. State of ber The same rogation wood which the Court murder. that case Watts was arrested noon until about 3:00 o’clock the fol- til officers relenting interrogation” withstood the held ing charged Court. days without counsel’s aid. Yet the conviction hearing. During same 73 S.Ct. There Also, ously “Cooper’s voluntary had come to never not under different wanted to have ficers to-one prisoners, x “ tionally prohibited. Fourteenth Amendment sion to [*] “Of completely spontaneous, victions through technique sistance. evidence he of a pressive trist. after before he was periods year, say course, their prisoner in Brown v. also sustained came when from was 1947 and gone 397, from o’clock the ratio But He [*] founded on arrest for five procedure as to overwhelm interrogations by priest, question in the sense While make them or that dance the illiterate or none was 97 L.Ed. so far as to about 11:30 that of time gives these confessions between pay scrutiny voluntary. about 5:30 that extensive the use automatically Stem’s confessions employed. the entire circumstances, the this sense L.Ed. 1801 questioned of became we Indiana, lawyer, these the Allen, given of crime, following morning. confessions secured have reversed indicated 469, response fiddler.” over convictions directed at Small- interrogators relay persistent “pressure days requires petitioner condemned petitioners a like period a successive 344 U.S. decided hold that powers or 338 U.S. But we and the no criminal suspect ‘relays,’ (1949). preliminary on Novem- questioning petitioners of six to makes before night convinced relays a confes- is so were Supreme constitu- eighteen psychia- a one- of un- after- in the inter- of re- when, obvi- relay were have 443, was was un- be- op- of- we In by application, Supreme judgment Court has in the dubious In Johnson8 years later, clearly not to re- of shortened stand- intention thirteen recorded its compel prisoners con- unde- quire whose ard to release retrial of of procedures serving upon defenseless secured under fessions were of violence may impos- the time doctrine current at retrial be sanctioned individuals when unavailability of the reason- of of or not forbidden sible because trial commitment, implications avail- of decisions then and civil able witnesses plaintive suggestion governance police majority, of able for the carefully police highly If observed duct. uncertain. reasonably understood the rules as conditional release cannot ought now not the burden retrial police correct thir- mistake the made proceeding be in this belated collateral years ago. teen If the officers involved state, upon nor the risk of Small- cast duty, today’s are still on decision active upon the innocent be cast wood’s release understanding of will not assist their public. nothing duty. say their What adds we guidelines; Miranda’s undermine mo- man. His violent that, them, inform for we officials poor primitive tivation is so psychiatrists if to- observe Miranda’s standards agree that under the in- day, may we censure them for it tomor- drink, he can ex- fluence of alcoholic again. row. pected to become homicidal guilty unquestionably the crime today’s can decision make While convicted; police procedures positive contribution clearly truthful. future, little undermines in finality it what judgments. in criminal there is are irrelevancies considerations Such Court’s runs This counter constitutionally in- if his conviction was desirabil- in which the course in Johnson judgment entered. firm when the finality judgments ity com- in criminal protection of astuteness in Current porting stand- current constitutional with recognized. rights odds with individual is not at It is fair to ards is high places society which interests judg- public to states or to the vacate liberty justice free- upon values as old this one on the basis ments evolving cornerstone fairness. It is the dom and standards which constitutional society. suf- If one innocent such reasonably antici- not have been could pated by society authoritarian fers harm which an acted. might avoided, individ- millions of have appraisal of the values An protection of their uals are assured of judgment clearly to- point our fluence rights dignity. But and of their principle The ward affirmance. infirmity such in Smallwood’s was no require it. to me Johnson seems agree conviction, it for all that in question reasons, respectfully then record unassailable. I For these govern my arises of the values which should dissent. *8 eight 13th, officers, pursued on the which the were the eases These 17th, guidance, 14th, 15th, 18th, when Watts for their had available 1953 During finally People broke. entire York of State New Stein v. given sleep. per- showing Be- little food less what was Brown v. Allen placed interrogation questioning he was tween sessions how extensive missible and might Watts, be, Com- in “the hole.” See also Turner v. Turner and Harris 62, Pennsylvania, impermissible. showing monwealth of 338 U.S. what 1352, 1810, Harris 93 L.Ed. S.Ct. well within the Stein here were Carolina, v. State South 338 U.S. Brown limits. L.Ed. 69 currently decided Jersey, Watts. In both Turner New v. State of Johnson relay 719, 731, Harris S.Ct. 1772. five and incommunicado detention of over days’ duration.