Lead Opinion
Dissenting opinion filed by Circuit Judge WILKEY.
Appellant, Kim L. Powe, was convicted by a jury of distributing one tablet of phenmetrazine in violation of 21 U.S.C. § 841(a). She contends that reversal is required because the trial judge permitted the government to impeach her credibility by introducing evidence of admissions of guilt she
I
On May 18, 1976, Officer Gregory Green of the Metropolitan Police Department was operating as an undercover agent in Northwest Washington, D. C. At approximately 2:15 in the afternoon, on a corner at 4th and M Streets, Green was approached by Arthur Harris, a man he believed to be a “known narcotics dealer.” Transcript (Tr.) 14-15. Harris offered to sell Green some
Although Officer Green did not recognize the woman with Harris at the time of the alleged transaction, he allegedly saw her later when Harris was booked for his role in the offense
At trial, appellant testified in her own behalf. Although she acknowledged that Harris was her boyfriend and that she had seen him engage in narcotics transactions, appellant denied her own involvement in any transactions and specifically denied involvement in the offense charged. Tr. 58-59. On direct examination, defense counsel asked appellant whether, at the time of her arrest, she had made any statements to the police. Tr. 56. When she replied that she had, counsel asked to approach the bench. Tr. 57. The ensuing conference developed as follows:
THE COURT: Are you surprised?
[Counsel]: Very surprised.
THE COURT: Do you want to withdraw the question?
[Counsel]: I will withdraw the question.
Id. The trial judge knew that counsel was taken aback by appellant’s response because, only moments earlier, counsel had informed the judge at the bench that her “testimony will be she made no statement at all.” Tr. 56.
Although defense counsel asked no further questions of appellant concerning her statements to the police, the prosecutor returned to the subject on cross-examination. First, he asked whether she had told Detective Yates that she felt sorry for Harris because she had gotten him involved with narcotics in the first place. Tr. 63. She replied, “I don’t remember making a statement like that.” Id. Second, the prosecutor asked whether she had told Yates that her role in narcotics transactions was to hold the drugs for Harris while he negotiated with customers. She answered, “No.” Id.
Defense counsel attempted on redirect examination to determine just what statements appellant did make to the police:
Q. Miss Powe, what did you say to the police when you talked to Detective Yates?
A. Well, they was asking me about, you know, what I had to do with narcotics and at the time I told them I was a drug user and Mr. Yates made propositions to me as far as turning over drug dealers up in that area over to him, to drop my case and Mr. Harris’s case.
Tr. 64. Evidently, appellant used the plural pronoun “they” because Yates was accompanied during the interrogation by Officer Green. Tr. 79-80. It is not clear whether Green questioned appellant, or was simply present. In any event, defense counsel did not pursue the matter further during redirect.
In order to impeach appellant’s testimony, the government then reopened its case and called Detective Yates, who had not testified initially. He indicated that at first appellant refused to talk at all, but began to do so after it was suggested that her cooperation might prove beneficial:
Q. [by the prosecutor] Now, did Miss Powe at any time [after receiving Miranda warnings] indicate to you that she didn’t want to talk to you?
A. At that time, no, she did not want to talk.
Q. Now, did there come a time subsequent to that that you did talk to her?
A. Yes.
Q. Could you describe the circumstances of that conversation, sir?
A. During the conversation, asking her if she wanted to cooperate with the police on drug traffic at 4th and M Streets and during that conversation, I stated to her: You really don’t want the other defendant Harris to fall for Harris [sic], get in trouble because of his activities and her statements were that: I am the one feeling sorry for him because I introduced him into drug trafficking.
Q. And at the time you were engaging in this conversation, did she indicate a willingness to talk to you, sir?
A. Yes, she did.
Q. Did your conversation include anything else, sir?
A. Well, she stated that she held the drugs while Harris did the selling.
Q. And what was the context that that particular statement was given to you in?
A. It was broken off back and forth during a conversation.
Tr. 71-72.
At the conclusion of Yates’ direct testimony, the trial judge responded sua sponte by instructing the jury that the government’s evidence of appellant’s admissions could be considered for purposes of impeachment only. Tr. 75-76. He indicated that the basis for this instruction was “the Harris case,” Tr. 75, evidently referring to Harris v. New York,
Finally, defense counsel sought to clarify the circumstances of the interrogation in his cross-examination of Detective Yates:
Q. Detective, you testified that originally Miss Powe stated that she did hot want to talk to you?
A. That is correct.
Q. What did she say to you?
A. That was after giving her the rights. I asked her where she lived and stuff like that and mentioned where she wanted to go and what she wanted to do. At the beginning of the processing, she was quite hostile and she didn’t want to speak to us about anything.
Q. How much time elapsed before she finally talked or spoke to you?
A. I would say about a half hour, hour or so, roughly a half an hour.
Q. Did you, during that half hour, did you leave her by herself?
A. No, this is during the processing.
Q. After that half hour, did you ask her again if she wanted to speak to you?
A. Yes, not just asked if she would, wanted to speak. I started talking to her about certain questions and everything else and during this time asked her if she wanted to cooperate and to assist herself in this case and help herself out.
Q. What did you mean by that?
A. Well, to cooperate with the police and help her to get other drug traffickers in the city, assist herself to work off the case if need be.
Q. Was it at this time that she made these statements to you?
A. Shortly after, yes. She started talking. I started talking and she started giving information, certain information of elements about the city and things like that.
Tr. 76-77.
II
It is by now too well-established to require extensive discussion that a conviction based, in whole or in part, upon an involuntary confession deprives the defendant of due process.
Ordinarily, the issue of voluntariness will be raised by the defense, either by pretrial motion to suppress
A
We start our analysis with the fundamental proposition that conviction of a defendant based upon a confession that is conceded to be involuntary would offend due process, whether or not the defendant strictly adhered to all of the procedural requirements of the trial court.
However, the Court has also made it clear that the reliability of evidence is not the only concern. Due process forbids the use of an involuntary confession without regard for its truth or falsity,
As important as it is that persons who have committed crimes be convicted, there are considerations which transcend the question of guilt or innocence. Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.
Blackburn v. Alabama,
One of the considerations consistently cited in decisions of the Supreme Court is the interest in preserving the individual’s “freedom of will.”
Yet another interest served by the exclusion of involuntary confessions is the deterrence of questionable police conduct.
Indeed, the right not to offer testimony against oneself except by “free and rational choice” is so firmly rooted in our notion of fundamental fairness that the Constitution does not countenance the use of an involuntary confession or admission by the accused for any purpose in a criminal trial. “[A]ny criminal trial use against a defendant of his involuntary statement is a denial of due process of law, ‘even though there is ample evidence aside from the confession to support the conviction.’ ” Mincey v. Arizona,
It is true that the accused’s right not to have an involuntary confession offered against him at trial may be waived. But the Supreme Court has always set high standards of proof for the waiver of constitutional rights. The requirement of “an intentional relinquishment or abandonment of a known right or privilege” was first articulated in a case involving the validity of a defendant’s decision to waive the right to counsel. Johnson v. Zerbst,
B.
Of course, our adversary system places primary reliance on the defendant and defense counsel to raise the issue of the voluntariness of a confession. Ordinarily, it is the defendant who is most familiar with the circumstances surrounding any statements she may have given, and it is the defense counsel who, through investigation and familiarity with the relevant legal doctrines, is best prepared to realize whether the question of voluntariness is raised by the events that transpired.
It has been recognized, however, that certain “alerting circumstances” may impose a duty on the trial judge to take a
Ill
Ironically, most of the evidence supporting appellant’s contention that she was induced to incriminate herself against her will comes from the mouths of the government’s own witnesses. Detective Yates, one of the officers who conducted the interrogation, testified that after being advised of her rights, appellant refused to talk to the police.
Moreover, the trial judge’s vigilance should have been heightened by the odd turn-of-events that transpired and defense counsel’s apparent unpreparedness and inability to deal effectively with the problems posed by appellant’s alleged admissions.
IV
We cannot and do not mean to lay the entire responsibility for failure to inquire into the question of voluntariness at the feet of the trial judge.
By leaving this determination in the first instance to the trial court, we do not mean to avoid our responsibility to make an independent evaluation of the record.
So ordered.
Notes
. The standard formulation of the voluntariness test is found in Bram v. United States,
But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.
This test was recently reaffirmed by the Supreme Court in Hutto v. Ross,
.Green testified at trial that, although still working under cover, he was at the police station when Harris was brought in. Although he was concentrating on Harris, he noticed that two men and a woman came into the station and asked about Harris’ case. He did not get a good look at the woman and did not realize until he saw her again at Harris’ preliminary hearing that she was the woman who had handed him the pill. Tr. 19-20.
. Green indicated that he was on the witness stand when he saw appellant seated at the back of the courtroom and realized that she was the woman with Harris. “[A]s I was testifying and I mentioned I met a Jane Doe and I looked at her, she got up and left . . . the courtroom.” Tr. 19-20.
. Miranda v. Arizona,
. Jackson v. Denno,
Constitutional prohibition against the use of involuntary confessions derives not only from the Due Process Clause of the Fifth and, in state proceedings, the Fourteenth Amendments, but from the Self-Incrimination Clause of the Fifth Amendment. See, e. g., Malloy v. Hogan,
. Shotwell Mfg. Co. v. United States,
.
In any criminal prosecution brought by the United States or by the District of Columbia, a confession . . shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness.
18 U.S.C. § 3501(a) (Supp. VI 1976).
. Fed.R.Crim.P. 12(b)(3).
. Fed.R.Crim.P. 12(f).
. In Brown v. Mississippi, for example, the Supreme Court reversed three state convictions based upon admittedly coerced confessions on due process grounds. The Court rejected the State’s contention that failure of defense counsel to move for exclusion of the confessions after they had been introduced and the fact of coercion had been proved precluded the Supreme Court from entertaining petitioners’ claims: “The conviction and sentence were void for want of the essential elements of due process, and the. proceeding thus vitiated could be challenged in any appropriate manner.”
In Jackson v. Denno, supra, counsel also failed to make a proper objection to the admission of the defendant’s alleged involuntary statements.
. Technically, appellant’s alleged statements would be considered “admissions” rather than a confession because they do not amount to an acknowledgment that she committed the offense charged. With respect to the rules governing the admissibility of involuntary statements, however, this distinction has no constitutional significance. Iverson v. North Dakota,
. “Since Chambers v. State of Florida,
. Bram v. United States,
. Rogers v. Richmond,
. Payne v. Arkansas,
. Blackburn v. Alabama,
. See, e. g., Greenwald v. Wisconsin,
. Pea v. United States,
. The objectionable police practices need not, of course, rise to the level of illegality to justify their discouragement. As the Supreme Court explained, referring to the confession excluded in Bram:
Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.
Brady v. United States,
. Spano v. New York,
. Blackburn v. United States,
.The Supreme Court’s decision in Harris v. New York,
. A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided.
Schneckloth v. Bustamonte,
. E. g., McMann v. Richardson,
. Boykin v. Alabama,
. McMann v. Richardson,
. Miranda v. Arizona,
. Defense counsel is aided in this task by the modern discovery rules, which, upon request, permit a defendant to inspect and copy any “relevant written or recorded statements made by the defendant . . within the possession, custody or control of the government, . the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant . . in response to interrogation by any . government agent, . . . and recorded testimony of the defendant before a grand jury . . . .” Fed.R.Crim.P. 16(a)(1)(A).
. If, for example, defendant’s statements at the time of arrest are thought to be more exculpatory than incriminating, the defense may deliberately choose not to object, even though the statements may have been coerced. Cf. Wainwright v. Sykes,
. Wainwright v. Sykes, supra,
.“Certain alerting circumstances, such as a defendant’s apparent abnormal mental or physical condition, obvious ignorance, or lack of awareness — all of which may reveal a dereliction in defense counsel’s failure to object to the introduction of a confession — may, under due process standards, require a trial judge to investigate the necessity of conducting a hearing notwithstanding the absence of an objection.” United States v. Taylor,
In several cases, courts have held that evidence of involuntariness adduced at trial should have “alerted” the trial judge to the need for such an inquiry in the absence of defense objection. In LaFrance v. Bohlinger,
In other situations, evidence of the defendant’s mental or emotional condition raised the risk that the confession was involuntary and required a hearing to be held despite the failure to object to its admissibility. Such a risk was found too great to ignore in Hizei v. Sigler,
. United States v. McCord,
. Both this court and those of other circuits have vacated convictions and ordered new trials or have remanded cases for hearings on voluntariness even though there had been no objections made on that ground at any point during trial. See, e. g. Proctor v. Anderson,
. “To assure the accused complete protection, the procedure should substantially be this. On proffer of the confession, even though there be no objection, the court should let the jury withdraw, and then take evidence upon the confession and its factual setting. . . . The court will thereupon independently determine whether the confession is admissible.” United States v. Inman,
In Woody v. United States,
However, as the dissent in Woody noted, the defendant need not always testify at the nonjury hearing on voluntariness. In fact, the present case presents the possibility that the defendant would not have to testify in order to make out a case of involuntariness, an occurrence which the majority in Woody found “almost impossible to conceive of.” Id.
. “At the beginning of the processing, she was quite hostile and she didn’t want to speak to us about anything.” Tr. 76.
We have no need to decide whether the continued interrogation of appellant after she voiced her desire not to answer any questions constituted a Miranda violation. See Miranda v. Arizona,
. Tr. 77. Ms. Powe’s testimony describes the offers of leniency somewhat more explicitly: “Mr. Yates made propositions to me as far as turning over drug dealers up in that area over to him, to drop my case and Mr. Harris’ case.” Tr. 64.
The government contends that appellant’s statements were not involuntary because the police sought her help in incriminating others, not herself. To begin with, the government offers an exceedingly narrow concept of “incrimination.” The Fifth Amendment privilege operates where the information sought to be extracted presents “a realistic threat of incrimination,” Fisher v. United States,
Moreover, we cannot say from this record that the officers did not, in fact ask appellant about her own involvement with narcotics. In fact, somewhere in the conversation that was “broken off back and forth,” tr. 71, appellant allegedly provided information about her own drug usage and involvement in narcotics transactions. We thus must reject the government’s argument that the record unambiguously establishes that Yates did not ask appellant about her own involvement and that her statements resulted from something other than the inducements offered to her.
. Tr. 77.
. The testimony of Officer Green, who was with Detective Yates at the time appellant was questioned, confirms that Detective Yates suggested that appellant might “work” her case off. Tr. 79.
. Bram v. United States,
. We note, in contrast, that the prosecutor was quite well prepared to handle appellant’s alleged admissions. Although no mention was made of appellant’s statements in the prosecution’s case-in-chief, perhaps because of doubts as to whether they could withstand a Miranda challenge, see note 35, supra, the prosecutor had Detective Yates ready to testify in rebuttal to Ms. Powe’s testimony.
. In what is yet another odd occurrence in this unusual case, counsel’s affirmation to the court that appellant would claim to have said nothing to the police was provoked by the prosecutor's objection to defense counsel’s asking the witness whether she made any statements. Tr. 56-57.
. Tr. 75-76. The trial judge did not indicate the basis for his concern over the officer’s testimony, but there are at least three explanations for his ruling. First, he may have found that the admissions were in fact involuntary, but erroneously thought them admissible for impeachment purposes under Harris. See note 22, supra. Alternatively, he may have found that the admissions were obtained through a violation of Miranda principles, see note 35 supra, and thought that no further inquiry into voluntariness was required. Finally, he may have found that Miranda was violated, but that the statements were voluntary. If so, however, he should have indicated the latter finding on the record with “unmistakable clarity.” Sims v. Georgia,
. Indeed, the trial judge, by sua sponte instructing the jurors on the limited consideration which they could give to Detective Yates’ testimony, assumed a greater role than that of the “passive bystander.”
. There is absolutely no indication in the record, nor has it been suggested by either party, that defense counsel’s failure to object to the admissibility of appellant’s statements was a deliberate tactical decision.
At oral argument, appellate counsel originally speculated that trial counsel’s failure to object might have been due to counsel’s unpreparedness on this point, appellant having told him that she had made no statements. After reviewing his notes subsequent to oral argument, appellate counsel “recalled that he had been told by trial counsel that he [trial counsel] was aware the Government would introduce statements, but that his client told him there were no statements and that trial counsel’s preparation was based on that assumption.” Appellant’s Motion to Amend Record of Oral Argument. If appellate counsel’s recollections are indeed correct, then by relying solely on whatever appellant told him and failing to conduct any independent investigation of the circumstances of the interrogation by interviewing the officers who conducted it, trial counsel appears to have breached one of the basic duties owed to a client. See United States v. Decoster (Decoster I),
. Appellant’s apparent failure to inform defense counsel of her conversation with Detective Yates certainly contributed to his failure to object at trial, although it did not preclude him from acting to correct the situation during the course of the trial.
. Estelle v. Williams,
. Cf. Fed.R.Crim.P. 52(b). (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).
. Jackson v. Denno,
. See, e. g., LaFrance v. Bohlinger,
Most of the cases in which voluntariness hearings were ordered despite the failure of defense counsel to object to the confession’s admissibility arose on habeas corpus or § 2255 review. We note that, in contrast to the scope of collateral review, which is limited to entertaining claims of violations of constitutional rights, a court on direct review may notice "plain errors or defects affecting substantial rights” even though “they were not brought to the attention of the court.” Fed.R.Crim.P. 52(b). We have interpreted Supreme Court precedent concerning this rule to establish that “the doctrine of plain error encompasses those errors which are obvious, affect the substantial rights of the accused and if uncorrected would be an affront to the integrity and reputation of judicial proceedings.” United States v. McCord,
Although courts generally invoke Rule 52(b) to reverse a criminal conviction, see e. g., United States v. Alston,
.United States v. McCord,
. Jackson v. Denno,
. Sullivan v. Murphy,
. Mincey v. Arizona,
.See, e. g., Jackson v. Denno,
Dissenting Opinion
dissenting:
I must dissent from any remand to explore the nuances of the testimony brought out at the trial in this case. The time to explore the underlying matters, if such were needed, was at the trial, yet none of the participants therein felt that clarification was necessary. It is only on this appeal that possible ambiguities of constitutional dimension are perceived.
The Government’s position on appeal is that appellant’s statements were not involuntary because Officer Yates asked her to cooperate only by incriminating others, not by incriminating herself. In other words, the “confession,” whose voluntariness is now to be determined on remand, was never asked for at all by the police; what they asked for and expected was information on other traffickers. The information as to her own guilt was volunteered by Powe, and unexpected by the officers. On the record, this is a reasonable interpretation now, as it was at the trial. If defense counsel thought otherwise, that these statements were involuntary, that they were coerced or extorted, or persuaded, and thus on the Supreme Court decisions relied on by my colleagues were “involuntary,” he should have apprised the trial judge of that and conducted an inquiry outside of the jury to make his case. This not having been done, we are now entitled to take this evidence, as all other evidence subject to varying interpretation post hoc, on the version which supports the judgment of the trial court.
I do not subscribe to the interpretation that this record “squarely raised the issue of voluntariness and should have alerted the trial judge to the possibility that appellant’s alleged incriminations were induced by ‘any direct or implied promises, however slight.’ ” Of course there were offers and inducements, but the question is for what?
While it is correct to impose upon the trial judge the duty to take sua sponte action where there is a plain violation of defendant’s rights put before him, and the defense lawyer omits to take the proper action, it is a far different thing to impose upon the trial judge the duty sua sponte to conduct inquiries into other matters which the defense lawyer does not choose to go into. Here the testimony is now argued to be ambiguous, the interpretation urged by the Government was apparently also that of defense counsel, the defense counsel left it that way, and now we are entitled to take the testimony on the interpretation supporting the judgment below.
If we were called upon to remand a case every time there was ambiguous matter in the record which, if given the interpretation after further inquiry as now urged upon us, might constitute a denial of constitutional rights, we would find something in almost every case justifying a remand on the theory that substantial violation of a constitutional right might be discovered by further inquiry. This is but one of many, many cases in which we could remand in an effort to produce “the perfect trial” — which probably has never occurred. The majority have added a new red light to the kaleidoscope of warning signals previously sent down to the District Court and now prominently displayed in front of every trial judge. If the trial bench were a cockpit, and the trial judges pilots, the aircraft would already be unflyable. I therefore respectfully dissent.