*1
763
819;
Judge
591,
(concurring).
644,
CLARK,
161
L.Ed.
U.S.
16
40
S.Ct.
States,
Chief
137,
Smith v.
69
United
337 U.S.
regretfully.
concur,
For
1000,
Secondly,
S.Ct.
principle individual shall not himself. Practical forced to condemn immunity ly, know, can no formal we protect minority from socie deviator ty’s departs from its when he dooms realistically viewed there America ex And UNITED STATES of rel. norms. THOMPSON, Appellant, Cleveland contention much in the defendant’s charge road is a v. end perjury supported oath of rene Warden, Allegheny DYE, Charles L. gade County Jail, Appellee. paid Convictions so informer. cannot cape sident minorities. mitted so which, obtained and ideology ,. carefully analyzed . j, from satisfy . respect a democratic ... punishment Supreme Court either stand, But I can toleration for dis- _, the needs Judge n are country com thus binding . see Weinfeld decisions , decreed no es- . . United Rehearing [19] Filed Argued Third Circuit . No. 11419. Denied Jan. April [5] States May Courtof 23, 1955. App eals US’ Judge (conc CALSTON, District u )
ring impres-
If were one this matter easily reach the sion I conclusion could immunity statute
that the attempt to circum- effect circuitous legis- by a short-cut vent the Constitution amending Fifth lative statute appear it would Amendment. support conten- authorities
that the Congress power has the to com- tion
pel testimony im- the enactment of an provides
munity an immu- statute against privilege nity co-extensive with Walker, Brown
self-incrimination.
764 Judge.
McLAUGHLIN, Circuit sitting Oyer juryA Court of Pennsyl- Allegheny County, Terminer of guilty relator-appellant vania found murder in the first and recom- penalty. mended death The convic- tion and by death sentence were affirmed Pennsylvania Supreme Court.1 The first time the matter came into application federal on for court was corpus alleged incompe- tence of defense counsel. We affirmed the denial of the writ following Thereafter, court.2 various steps cause, petition in the another for habeas in the dis- was filed ground urged trict court. The was the withholding suppressing tes- of vital timony favorable to his trial relator at hearing the Commonwealth. After petition. appeal the court denied the On we remanded the case to the district for court of fact whether the testimony court credited the Heagy prosecutor officer or the as to what the former told the latter before concerning trial the condition of ac- cused at or about the time of his arrest.3 pursuance of this the district court F.Supp. findings made further [123 761] fact, particularly that: inform the did “2. Mr. participated in relator a bar- the arrest in a had been the latter room where disarmed. and had been brawl Strauss, informed further admits, the relator latter Pittsburgh, Pa., Glasso, for C. Louis influence of under the time at that appellant. degree; quarrelsome liquor to a Pittsburgh, Pa., Fiok, for of alcohol Albeit A. the odor smelled Jr., (James Malone, Dist. appellee. him; F. clothes were shirt and that his Lawley., Pittsburgh, Pa., perspiring Atty., torn; Frank P. and that he was Atty. Gen., Jr., Deputy F. Tru- up.' Frank ‘messed appellee Atty. Gen., scott, on the prosecuting officers “3. The brief). to defense counsel communicate prior to the State McLAUGHLIN, KALODNEK Before trial, that, time of relator’s ar- Judges. HASTIE, Circuit 429, denied, 1953, F.2d certiorari 2. 203 Thompson, 1951, 367 1. 960, 73 S.Ct. U.S. L. denied, 79 A.2d Pa. 1380. Ed. L.Ed. 6 8 3. F.2d penalty. Thompson’s death rest, detected several prosecution wit- was to ness, effect. on relator’s One of alcohol the odor breath; signs Spells, cor- extent that he showed *3 surprise fight; plea engaged him on a in roborated as to another matter the Commonwealth impeached officer would and that at least say credibility. eye her One wit- was under the he degree.” Thomp- ness to the quarrelsome testified that ato appear son did not The intoxicated. made additional The court also produced Commonwealth also the bar- namely: law, conclusion place tender at the where was prosecuting not officers were “The arrested, and he testified that there was possession or information evi- nothing wrong Thompson, with defense which dence vital to relator’s drunk, eyes was not and that his were obliged they were to disclose to glassy. only police normal and not The or defense to the court.” questioned Thompson’s to con- as officer, citing arresting court, dition was the other The our decision “per- Baldi, He Dubis. said United ex Almeida v. States rel. fectly right “perfectly normal” and Cir., all 195 F.2d 33 A.L.R.2d every respect”. nothing denied, 1953, He said re- garding Thomp- odor Almeida, of alcohol on v. U. Baldi S. ex rel. 1341, quite son’s breath and when properly asked how he 97 L.Ed. right, replied suppression knew he was all he “The states: “The of evidence may process man walked with many out me. be a denial of arrested due when it drunk, referring you evidence, if are is vital material the issues guilt penalty.” 759, that.” F.Supp. or Rutkin, See United States v. police who None the other Cir., 1954, 212 F.2d 644-645. anything trial said were witnesses at the relating important question Thompson’s The about condition before isus whether on him. Officer to an order of alcohol erred in hold- ing though Heagy, subpoenaed a matter of Com- law that the withheld suppressed present and as a witness evidence was monwealth not vital to the defense of not of the called accused. most actually prosecutor. He was stand The had theo- alternative prosecutor from attend- excused (1) ries: had committed night of the trial at ance at session killing Russell, of Wallace the bar- Heagy therefore which Dubis testified. place “Barbary tender at called the testimony nor, hear accord- did not Coast”, in the course of an armed rob- ing long him, hear after bery; (2) Thompson wilfully Thompson was arrested within the trial. premeditation killed said Wallace shooting. approximately four hours defense, admitting Russell. The argues from this The Commonwealth killing, any robbery denied motiva- irrelevant be- tion and contended that proofs is too remote. do cause it The through drugs drink and was in such justify that not contention. a mental state that he could not have necessary formulated the Barbary intent to raise occurred to first murder and Coast somewheres around 7:00 o’clock any event, evening that in September 13, because of his condi- in tion, his offense produced eye did warrant three ** * * * » sweating 4. At the district court he he hear- * ** beating; Dubis testified he like took looked detect an Thompson’s somebody grabbed odor of alcohol on like breath it looked his hair open, pulling that “His shirt was torn and there on his hair.” and was under him but his bare skin eating Spells him were testified that never saw she who said that witnesses drinking looking night. pop like he “His soda did that sandwiches fish According eyes shooting. glarey. He himself wasn’t time of the * * * they.saw in at no one all. looked like their intoxicating something Barbary under the influence Coast particular night.” made liquor.5 who There was also tes- officer One night timony right past premises he walked an examination and, shooting, was no “There station 10:00 testified: Nothing night,9 out liquor. o’clock that arrived the Tri- of beer or angle empty soft *4 of Bar nine or more cases which was some of three side 6 According Thompson, Barbary how from “all to blocks the Coast and drinks.” up Triangle, Bar only at hill.” the ever, served the At he was ob- drinks the whiskey “sliding up bary served down bar” and “moonshine and the Coast were taking glass testified a “tuck at his coat” where bar- and a of water.” He drinking gun. tender observed his that had started The bartender trial Barbary he police. Thompson o’clock that around 3:00 called Meanwhile Coast cigarette shooting afternoon; patron prior had another for a that asked though pints (even Thompson moon of had seven on had drunk at least four he “drinking pint” arrested) whiskey pint for him none, Thompson pushed when told had when and he shine smoking mari one hand in his had been and juana addition guy gun. bought ped pa- a face for his he and reached which “from imagined grabbed help dling he tron him and with the of He said there.” ciga marijuana others, Thompson was disarmed and held four smoked about he during there.8 down until and time he was Patrolmen Dubis rettes the. shooting to make the at the time arrived arrest. said that He every “I was under the According Triangle bar thing.” gave him, Thomp who tender served he the; only evi drinks. is no son two There In interval between from or at the dence the bartender and his arrest there Thompson actually anyone the home of or else visited any Triangle any liquor in Spells drank 8:00 P.M. and around Mattie leaving Barbary Coast. loan two dollars. Mattie where fcr asked a Army service, eye had Ms for wMck he been he was witness said 5. A fourth given paraldehyde, phenobarbital eye drinking and later and a fifth a bottle of beer they giving away beer, on treatments. electric shock said were witness pop not one of the five cor- and wine day September election story Thompson’s that moon- roborated Pittsburgh. In accordance with the whiskey being sold. shine Triangle Bar did not law the P.M. 10:00 police however, officers, said 6. Two other gallons moonshine did find testimony adduced at the ha- 10. Further Thompson’s whiskey bar; ex under hearings Thomp- showed beas drinking everyone girl said friend son, his and ar- between manager place moonshine; and rest, own home where also went his that some on cross-examination minutes, admitted stayed for about fifteen visit- people have been” “could Spells Mr. Mrs. home of Loice ed the moonshine. (brother sister-in-law of Mattie Spells) hour, a for about and with half cigarettes arrest seven his 7. At the time Spells help “partly who Mr. toted possession in his but the Oom- found Spells’ a Mm” back Mattie house went ' produced expert monwsalth landlady, His Mrs. Kath- second time. upon analyzing cigarettes, who, one of the up Smith, testified that erine “fell marijuana. no found had drunken, very steps” stupid in “a and was Spells picked up Mr. and Mrs. condition.” Both in 1949 he was 8. Earlier marijuana. drugged using suspicion he was in drunken said he,,had stagger- condition —“he was drunk and testified that sustained nervous ing.” during when in 1942 overseas breakdown Assuming jury. Spells the two drinks believed that he did take had Triangle been there is discredited the State. testimony, would warrant an that what the situation inference the effect of finally revealing officers observed about his condi- of Dubis had brought Thompson, tion had smelt thereafter been alcohol on verifying this, two and was not other those drinks witnesses might jury continuation of the state he well have induced the to be- shooting. Clearly Thompson’s in at the time of the phys- lieve evidence about his relevancy weight of the hereto- ical and mental The result could state. fore undisclosed evidence of the arrest- have been a of second mur- der,11 officers and some those at degree, or if first a recommenda- jury. station was imprisonment.12 Admittedly, From tion of life might conclusion that jury was even with that evidence the quarrel- under the accepted influence of Thompson’s well not degree, plus mony, might his statement indeed not have credited alcohol, Heagy, smelt his policemen. shirt Dubis and *5 torn, and clothes conjectures and that he permit was But those do not that together up, messed merely with Dubis and other evidence to be brushed aside as policemen saying now cumulative. Nor can it be held as a alcohol, signs smelt of that he showed unimportant matter of law to be engaged fight, been in a and with defense here. It was substantial evi- stating Spells at the trial that dence which should have been never but shooting Thompson after the jury “looked (the only fun- was submitted to the ny eyes glassy and while his pass were all upon it) I entitled to tribunal in con- was afraid of him” and charge with no evidence nection with what the court did of further at all after the shoot- as to the effect of the drunkenness ing except perhaps the two drinks at the or that he was under in- Triangle Bar marijuana drug before he was ar- fluence of or a at the rested, jury reasonably killing.13 could have time of the See Commonwealth inferred that Edwards, 1955, had been in a v. 380 Pa. 110 A.2d far 216; worse state of intoxication Detweiler, 1910, when he Commonwealth v. shot Russell than at time he was 229 Pa. A. 271. arrested and from the same causes. Appellee’s point final is that argues State, so, But, even available as a the defense merely proffered language is cumula evidence cites the it district court’s argues suppressed had so that is tive. It “Evidence or with- Spells. Thompson, knowledge did Mattie held if the testified as accused has of the defendant, tell the dreadful facts and if circumstances or other- thing during had done while “under the in wise become available to him everything” quarrel as best he could trial.” We have no fluence with that general good very principle relevancy and was not has no which wasn’t it deprive 391, 404, 353, 359, 11. “Intoxication sufficient to Pa. 65 A.2d design denied, power to form a with de- mind of 338 U.S. premeditation, prop- and to liberation and 528. 94 L.Ed. consequences legitimate erly judge the opening language 13. The of the trial court act, from will reduce a murder point was: this to murder the sec- “Now, jury, members of the at this degree.” ond Commonwealth v. McCaus- your point I desire to call to attention the 275, 277, land, 35 A.2d 348 Pa. drunkenness effect of the of this defend- ant, or that he was under the influence * * * marijuana, drug true or a “It the time of important you of intoxication this connec- That occurrence. fact for penalty (Emphasis supplied.) tion with the determination of to find.” * * Commonwealth Simmons, denying Heagy was in case the District erred in Court us. the facts before relief to the accused. potential prosecution witness court as a exception throughout with the the trial my opinion since the night stand. on the Triangle Dubis testimony introduced gave damaging latter Dubis, Bar bartender against the close At tie defendant. arresting officers, accused’s testified, night session at which Dubis was not under the “At court: stated arrest of his the time I a few time could call this shooting and that hours after what has corroborate officers who would jury it “could further stated to it already see no reason been to. who would testified call a few other merely why prolong we should already been testi- what has corroborate mony are not the witnesses Dubis) now when (by the bartender fied to” supplied.) That (Emphasis here.” unfair- committed fundamental phase particular picture withholding on this ness to the accused no case and of the state’s testimony Heagy’s ac- available anyone.inter- knowledge by Thompson or liquor”. was “under the influence cused testimony in him that ested present contention Commonwealth’s vitally Dubis that of differed so from be- is irrelevant years Had the trial. square with doesn’t is too remote cause it peer lawyer without defense trial of the bartender’s its introduction hardly have he still could as an advocate dealing the same Dubis’ *6 arresting putting the second held to period. The “remote” there stand where the officer on If, too. and eat it have its cake cannot expectation every that his reasonable sobriety testimony view, of its under story what Dubis with would dovetail rele- after the four hours apparently contention said. The certainly Heagy’s the vant at urged seriously application must that this contrary mony also relevant. the of the trial under the facts fall because specific I reason alone would For this Heagy is did not call Officer defense the gainsaid reverse, cannot be because it specious, accept it.14 We cannot suppression of that the Commonwealth’s judgment court will of district the testimony fundamen- constituted remanded reversed and the case under the circumstances tal unfairness corpus. a writ of habeas issuance of the recited. we have said here my because in this view I have stated taking of
precludes or the a new trial testimony ordi- opinion would steps proper defendant to hold the narily since inadmissible have been custody pending a new trial. See such four a time hours related to Baldi, Almeida ex rel. United States suppression and its occurred page footnote 30. supra, F.2d at offering by Common- (absent testimony as accused’s to the wealth of Judge (concur- KALODNER, Circuit shooting) sobriety hours after the ring). fundamental not have constituted would my agree under of rele- of its lack with brethren unfairness reason sobriety existing special in this circumstances establish the accused's vance points: (1) corpus hearing Appellant has two other was the erred in not we trial court On are unable to find truth. prosecu- clearly wrong told the as Officer ;hat Thompson extremely supporting acted his was evidence conclusion. tor insane; (2) remaining point, drunk, incoherent statement On refusing hearsay. dying court erred in It was not within the " n exception. Heagy’s statement, Wigmore, made declaration dence, Evi- admit Officer fatally duty, (3rd 1940). line wounded of Sec. 1433 ed. It was everything properly effect he had- said therefore excluded. upon depends of the shoot- mental or drunkenness the time much fairness so ing. particular facts that a case precise rule can not be devised. Pennsylvania courts have While the likely many It seems situations on this issue not declared themselves fairly prosecutor will in which arise can sobriety testimony relevance as keep knowledge to himself his of avail- is after a crime drunkenness four hours testimony able which he views as mis- jurisdictions have committed other uni- taken or false. But there are other formly ruled such evidence inadmissible.1 prosecutor circumstances in which a must, certainly should know even HASTIE, Judge (concurring). Circuit honestly which he disbelieves expresses This an addi- concurrence type or from a source which all thought problem tional about the this probability very persua- would make it disagreement any than with case rather jury. sive to a fair minded This is reasoning My of the court. concern notably true of of a unduly implications is that no broad be officer, certainly arresting and most of an read into this decision. officer, favorable to a contention of the person. accused Here the controversy ex- The matter in is the only kept quiet about the existence duty charged public tent testimony, but, Judge of such Mc- investigation Laughlin points out, even stated in conflicting of crime when discover court that other officers if called gov- point. evidence on material already “would corroborate what has ernment and below the court seem to Thus, wrong been testified to.” prosecutor, have believed that once obviously significant nondisclosure of tes- all examined of the available evi- timony compounded by misleading dence, the truth of an convinced that affirmative statement as to the nature of he is issue lies one side relieved testimony. obligation available unused any to disclose existence *7 degree sup- of ports evidence brief, every it is not case in which he believes would a false what must reveal the avail- conclusion. it seems me ability inconsistent with lay possible government’s is not down a rule the contentions. But of thumb for such situations. It can be special circumstances such nondisclosure said that the must not in may, certainly act does, and here it amount essentially way. unfair But this is to fundamental unfairness in the in which area of funda- a criminal case. Commonwealth, 1. In Jordan v. 181 Va. it could be shown that Commonwealth 25 S.E.2d evidence intoxica- witness was intoxicated time of kill- killing tion one-half hour after was ex- could not show intoxication eluded; State, Ala.App. Raynor in Goodman afterward; v. one-half hours Wilmington, Co., intoxication So. S. C. R. v. N.C. part gestae res one hour after- 39 S.E. evidence four hours excluded; State, in Pollock wards was excluded. 136, 116 court held Wis. N.W.