428 F.2d 1354 | 3rd Cir. | 1970
Lead Opinion
OPINION OF THE COURT
Relator was convicted in December 1964 of second degree murder after a jury trial in the Essex County Court in New Jersey and sentenced to imprisonment for a term of 28 to 30 years. On direct appeal, the Supreme Court of New Jersey affirmed the conviction. State v. Harvin, 46 N.J. 151, 215 A.2d 352 (1965). Relator then sought federal habeas corpus in the district court of New Jersey which dismissed his petition.
Relator’s first contention is that the statement he gave the police which was introduced in evidence at the trial over his objection was inadmissible under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), because he was without the assistance of counsel at his interrogation. His trial began after Escobedo was decided, but prior to the decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and therefore the rule of Escobedo and not of Miranda applies. Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
The police testified that they told relator he had a right to have counsel present, but whether this be true or not, it is undenied that relator never specifically requested counsel.
Relator also attacks his statement as involuntary and claims that it was the product of coercion by the police.
Relator was arrested on April 24, 1964, at about 10:30 p. m. and taken to police headquarters where he was booked for murder. After spending the night in jail he was interrogated by the police on April 25 from 12:05 to 1:05 p. m. and again from 3:15 to 4:35 p. m. No verbatim transcript was made of the interrogation, but at its conclusion a statement was prepared in question and answer form summarizing relator’s responses. The statement was read to him and he made his mark at the end. It is undisputed that relator has a low grade mentality and can neither read nor write. A physician who examined him on behalf of the state testified that he is a low grade moron but has enough residual mental capacity to understand the nature and quality of his behavior.
Relator claims that he was threatened by the police shortly after his arrest, that he was not fed during the period of confinement before the statement was elicited and that his common-law wife was jailed without any charge made against her while he was being interrogated. He was kept in custody for almost a day before being taken to a magistrate. On the other hand, the period of detention from the time of his arrest to the signing of the statement, including a night’s rest, was less than 24 hours. The interrogation itself lasted less than two hours. Neutralizing the claim of coercion is the indication in the record that relator cooperated fully with the police almost from the beginning of the questioning and that he does not challenge the accuracy of most of what is contained in the statement but instead contends that it is incomplete because it fails to recite all that he told the police. He admits the correctness of the statement that he shot the decedent, but claims that it fails to include his explanation that he had taken out his gun only in self-defense and that it went off accidentally.
The district judge, on a consideration of the “totality of the circumstances,”
The trial court followed the practice then prevailing in New Jersey, which the Supreme Court later approved in Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967), and in the presence of the jury heard the testimony relating to the making of the statement.
After a short recess the trial judge announced his decision outside the hearing of the jury. He ruled that the statement was admissible and that it was the jury’s function to determine its voluntariness. The judge's decision followed the channel marked out by the prosecution’s view of his function. He distinguished between admissibility and voluntariness, limiting the trial judge to the determination, as the test of admissibility, whether the state had made out a prima facie case, and leaving it exclusively to the jury to determine whether the confession was in fact voluntary.
“A constitutional rule was laid down in [Jackson v. Denno] * * * that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. * * * [I] t is not for the jury to make the primary determination of the voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.” (p. 543-544. 87 S.Ct. at 643)12
A prima facie decision by the judge of the admissibility of the confession, therefore, does not comply with the requirement of Jackson v. Denno.
Since there is doubt whether the trial judge decided the question of the voluntariness of the statement, it follows that the record fails to show a “clearcut” determination which appears with “unmistakable clarity.” The doubt must be resolved in favor of the relator, for to doubt, on this standard, is to deny.
Relator therefore is entitled to have a determination made of the voluntariness of the statement in accordance with Jackson v. Denno. We will accordingly reverse the judgment of the district court denying the petition for habeas corpus, and following the procedure in Jackson v. Denno
The judgment of the district court, therefore, will be vacated with direction to order the grant of a writ of habeas corpus unless within a time fixed by the district court further proceedings are taken in the state court in accordance with this opinion.
. The district court’s opinion, filed May 2, 1969, is unreported.
. Indeed, at the argument on the use of his confession at the trial, relator’s counsel acknowledged that Escobedo had no bearing on his case because he had made no request for counsel. He argued that the police were “gilding the lily” in tes
. See United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3 Cir. 1965), vacated and remanded 384 U.S. 889, 86 S.Ct. 1914, 16 L.Ed.2d 995 (1966).
. See also Frazier v. Cupp, 394 U.S. 731, 738-739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).
. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Fikes v. Alabama, 352 U.S. 191, 197-198, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). See also Davis v. North Carolina, 384 U.S. 737, 740-741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).
. As pointed out in Pinto at p. 32, 88 S.Ct. 192, 19 L.Ed.2d 31 n. 1, since 1967 the New Jersey practice has been changed and hearings on admissibility are to be held outside the presence of the jury if the defendant so requests. See State v. Broxton, 49 N.J. 373, 386, n. 2, 230 A.2d 489, 496, n. 2 (1967). See Rule 8(3) of the New Jersey Rules of Evidence.
. State v. Tassiello, 39 N.J. 282, 188 A.2d 406 (1963); State v. Fauntleroy, 36 N.J. 379, 177 A.2d 762 (1962); State v. Smith, 32 N.J. 501, 558-560, 161 A.2d 520, 550-552 (1960) (concurring opinion by majority for the “future guidance of the trial bench”). But cf. State v. Loray, 41 N.J. 131, 195 A.2d 289 (1963).
. Italics supplied.
. “The question here to bo determined is, should the Court admit the alleged statement of the defendant into evidence. What must the Court find?
“One, that there has been testimony offered by the State that no physical violence was used against the defendant to compel him to give or sign the statement.
“Two, that no threats were made against the defendant and,
“Three, that no promises were made to compel the defendant to give or to sign this statement. * * *
“The Court is to determine under all of the circumstances should the statement be admitted, and if it is admitted it is still then the function and the proper function of the jury to determine,
“One, was the statement given voluntarily and,
“Two, is it the truth.
“They can judge of the credibility, not my adversary, not me and not your Hon- or, as to whether this, in fact, was voluntary.” (Italics supplied.)
. “After carefully considering it, all of the circumstances, and trying to keep in mind the fundamental fairness which was very ably expressed by Mr. Boylan [relator’s counsel], I think that in the circumstances of this case that the statement is admissible, believing, of course, as I will necessarily charge, it is their function to determine its voluntariness after they have had a chance to hear the defendant and his version of it.
“I was even a little bit disturbed because some of his version of what happened got in, but of course, it is not, in my liumble judgment, prejudicial to him, so I feel that it is admissible, but its voluntariness, that is the question of that, is one for the jury and I will, therefore, deny the motion made by the defense counsel to keep it out, and I will grant your offer to have it admitted into evidence.” (Italics supplied.)
. See State v. Smith, 32 N.J. 501, 161 A.2d 520, 545-546 (1960) (opinion of Hall, J.).
. Ellis v. Fitzharris, 407 F.2d 799, 800-801 (9 Cir. 1969); Javor v. United States, 403 F.2d 507, 509 (9 Cir. 1968); Smith v. Texas, 395 F.2d 958, 961 (5 Cir. 1968); Mullins v. United States, 382 F.2d 258, 262 (4 Cir. 1967); Fisher v. United States, 382 F.2d 31, 34 (5 Cir. 1967); Baker v. Colorado, 305 F.Supp. 154, 156 (D.Col.1969). See also Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964).
. See cases cited at note 12, especially Javor v. United States, 403 F.2d 507, 509-510 (9 Cir. 1968).
. 378 U.S. at 395-396, 84 S.Ct. 1774. See Sims v. Georgia, 385 U.S. at 544, 87 S.Ct. 639. See also Boles v. Stevenson, 379 U.S. 43, 45-46, 85 S.Ct. 174 (1964); United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 130 (3 Cir. 1966).
Dissenting Opinion
(dissenting).
Chief Judge Augelli of the district court in his opinion in this case stated:
“After such testimony [on the issue of voluntariness of the relator’s confession] was concluded, the jury was dismissed from the courtroom, and the judge heard argument, pro and con, on whether petitioner’s statement was voluntary and admissible. He determined that it was. When the jury was returned the judge, in keeping with the teaching of State v. Smith, 32 N.J. 501, 549, 161 A.2d 520 (1960), made no disclosure to the jury of his finding, allowed the statement to be marked in evidence, and permitted it to be read to the jury. In his charge at the close of the case, the judge clearly instructed the jury that it was its function to determine whether the statement was voluntarily given, and that if the jury found to the contrary, it should be disregarded completely and no evidential weight whatsoever should be accorded to its contents.”
I agree with Chief Judge Augelli that the judge at the relator’s trial did decide that the confession was voluntarily given while at the same time submitting that question to the jury de novo, as required by the rule of Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The judge’s language was: “I think that in the circumstances of this case, that the statement is admissible * * * ” Since the relevancy of the confession needed no argument, the only substantial question of admissibility which was before the judge was its voluntariness “in the circumstances of this case”. I am, therefore, satisfied that when the judge, after argument, ruled the confession admissible he was ruling that he found it to have been voluntarily given. Of course, he followed this ruling, as he was required to do, by a charge submitting the question of voluntariness to the jury de novo.
It should be remembered that Sims v. Georgia, 1967, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593, which held that the trial judge’s finding of voluntariness “must appear from the record with unmistakable clarity” was not decided until more than two years after the relator’s trial and the trial judge did not have the benefit of that decision. Here, I think it sufficiently appears that a finding of voluntariness was made by the trial judge. My brethren do not disagree with the district court, as I do not, that in the totality of the circumstances presented by the record the relator’s statement was not in fact involuntary. But although the trial judge admitted the statement as voluntary they would reverse and remand in order to require the trial judge or some other New Jersey judge to repeat this finding “with unmistakable clarity”. To me this is formalism without meaning. Believing that the trial judge complied in substance with the rule of Jackson v. Denno, I would affirm the order of the district court denying the relator’s application for the writ of habeas corpus.
