L. v. Haire v. Robert Sarver, Commissioner of Corrections ( 1971 )

MEHAFFY, Circuit Judge.

L. V. Haire, defendant, was indicted for first degree murder for the killing of Freddie Lee Jackson, a sixteen-year old Negro boy.¹ Upon trial to a jury defendant was convicted of second degree murder and on direct appeal his conviction was affirmed by the Arkansas Supreme Court. Haire v. State, 245 Ark. 293, 432 S.W.2d 828 (1968). Defendant petitioned for a writ of habeas corpus which was denied by the federal district court, opinion reported in Haire v. Sarver, 306 F.Supp. 1195 (E.D.Ark.1969).

The issues on this appeal were resolved adversely to defendant by the Arkansas court in a unanimous opinion and also by the federal district court. They involve the admissibility of evidence of statements freely and voluntarily given by the defendant while in custody but without interrogation and whether such voluntary statements as to the location of the body and the murder weapon hidden in his home constituted a consent to the search. We affirm.

The facts in this case are not in dispute and are elaborately set out in the heretofore reported opinions, and in brief defendant has adopted the facts as recited by Chief Judge Henley in his opinion, Haire v. Sarver, supra. We briefly summarize.

The mother of the deceased reported his disappearance and stated to investigating officers that he was last seen leaving the mother’s house in the company of defendant’s wife who was subsequently identified and taken into custody. She apparently promptly admitted that the deceased had been murdered and that she and her husband committed the crime. While she was being questioned, defendant appeared voluntarily at the jail and was arrested. Defendant’s wife told the officers that the body was in a wheat field on the right side of a county road. She was taken to the area where a search was conducted without success. Defendant was also taken to the scene and when his wife was asked whether she had not told the officers that the body was on the right hand side of the road, defendant, without waiting for her reply, stated, “no, Honey, on the left side.” The wife was then asked where the gun was hidden and she replied that it was under the bed at her home. Again, defendant corrected her and stated that the gun was hidden in the fireplace. Defendant had not been given the Miranda warnings and was not interrogated. The body was found at the location defendant indicated. The two investigating officers accompanied by defendant's wife went to their house and found the gun where defendant said it was located. It was proven that the gun was the murder weapon from which six bullets had been fired into the body of the deceased. Sufficiency of the evidence is not challenged and the record reveals that defendant not only had threatened to kill the deceased but had purchased a box of bullets fitting the gun from a country merchant a short time prior to the crime. Thus, the evidence was sufficient to have justified the jury in finding deliberation and premeditation and a verdict of first degree murder, but the jury verdict was for a sentence of twenty-one years for second degree murder.

Admissibility of Defendant’s Statements.

Defendant argues in brief that in permitting evidence of self-incriminating statements of a person in custody but not in response to a direct question the Arkansas Supreme Court as well as the federal district court engrafted an exception to the Miranda rule, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is asserted that such a ruling is not countenanced by the explicit language of the Supreme Court in Miranda. We do not agree. Such an interpretation of Miranda as suggested would require a broad extension of Miranda-one that was not contemplated by the majority of the Supreme Court as clearly reflected by its opinion.

Defendant’s argument assumes without record justification that he was interrogated but he was not interrogated at the scene or at any other time. He was under arrest and in custody and was taken to the scene. His wife had previously told the officers the location of the body. They could not find the body so the officers obviously thought that Mrs. Haire might be mistaken as to its location. It was in this light that questions were asked her. No question was put to defendant and his wife jointly, but only to the wife. The answer by defendant was freely, spontaneously and voluntarily given without any semblance of compelling influence. There is no evidence that he was interrogated prior to that time, and indeed there was no need to interrogate him as his wife had apparently immediately admitted that she and her husband had murdered Freddie Jackson. Both the Supreme Court of Arkansas and the federal district court found that the statements by defendant were voluntary and spontaneous and not in response to any interrogation of defendant by the officers. Defendant at no time was asked a single question and at the time he made the voluntary statements both he and his wife apparently were cooperative with the officers. There is no background or atmosphere here in any wise comparable to the four cases in Miranda.

In the very first paragraph of Chief Justice Warren’s majority opinion in Miranda, he stated:

“More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” (Emphasis added). 384 U.S. at 439, 86 S.Ct. at 1609.

In the second paragraph of Chief Justice Warren’s opinion, he stated:

“There, [Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 21 L.Ed.2d 977 (1964)] as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession.” 384 U.S. at 440, 86 S.Ct. at 1610.

On the following page (384 U.S. at 441, 86 S.Ct. at 1611), the Chief Justice said that certiorari was granted in those cases “in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation * (Emphasis added.)

In more specifically describing the cases and the issues, the Chief Justice said on page 445, 86 S.Ct. at 1612:

“In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. * * * They all thus share salient features — incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.”

The Chief Justice said at 384 U.S. at 457, 86 S.Ct. at 1618:

“In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.”

In fact we find that the word “interrogation” is used at least one hundred twenty-nine times in the course of his opinion.

The Chief Justice made quite plain that statements given freely and voluntarily without any compelling influence are admissible and that the fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel but whether he can be interrogated. He stated:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” 384 U.S. at 478, 86 S.Ct. at 1630.

In the case at bar, despite the fact that defendant was in custody for several hours before the statements were made, there is no allegation that he was questioned at all during this period and no evidence of any semblance of pressure or coercion or lack of voluntariness of the statements. “If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.” 384 U.S. at 474, 86 S.Ct. at 1628. We hold that the district court was correct in finding that defendant’s statements were spontaneous and voluntary and note that it is not controverted that defendant actually made the statements.

The Search and Seizure.

It is next contended that the murder weapon and the articles of clothing were inadmissible as being obtained without a search warrant. Justice George Rose Smith, speaking for the Supreme Court of Arkansas, said:

“The only testimony on the point is Officer Lewis’s uncontradicted statement that the officers ‘got a search warrant and went to the house with it.’ ” Haire v. State, supra, 432 S.W.2d at 830.

In the habeas corpus proceeding Judge Henley observed that neither the warrant nor the affidavit was put into evidence or included in the case file and that “the testimony about the warrant was extremely indefinite, as was the testimony about the date of the search.” Haire v. Sarver, supra, 306 F.Supp. at 1198. Judge Henley requested counsel to try to find out more about the supposed warrant and to attempt to stipulate in that connection. In response to the court’s request the attorney for the defendant and the state’s attorney entered into a stipulation that their investigation failed to reveal either a warrant or an affidavit but that the process server’s book in the office of the sheriff indicated that a search warrant for the premises of defendant was received in the Sheriff’s office May 8, 1967 and returned May 9, 1967, and that shoes and trousers were found. The full text of the stipulation omitting the style of the case and the signatures of the respective attorneys appears below.²

Thereafter Judge Henley found:

“If a person situated as was Haire on the afternoon of May 7 spontaneously advises investigating officers that evi-dentiary material is to be found in a given place in his house, the Court thinks that the volunteering of such information is tantamount not only to a consent to a search of the house but also to an invitation to the officers to make the search, and that they are free to act on it.” Haire v. Sarver, supra, 306 F.Supp. at 1199.

The consent to search is ordinarily a question of fact. This court said in Maxwell v. Stephens, 348 F.2d 325, 336 (8th Cir. 1965), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965), “Nevertheless, the existence and voluntariness of a consent is a question of fact.” See also Wren v. United States, 352 F.2d 617 (10th Cir. 1965), cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966); United States v. Page, 302 F.2d 81 (9th Cir. 1962).

In reviewing a trial court’s determination, it has been held that the “clearly erroneous” rule is applicable. Wren v. United States, supra; United States v. Page, supra. Compare Lowrey v. United States, 161 F.2d 30, 34 (8th Cir. 1947), cert. denied, 331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858 (1947); Kincade v. Mikles, 144 F.2d 784 (8th Cir. 1944).

In this case there is an abundance of substantial evidence to support the district court’s finding and certainly we cannot say that its finding is “clearly erroneous.”

In Rice v. Warden, 237 F.Supp. 463 (D.Md.1964), aff’d in an unpublished memorandum opinion, No. 10,112, 4th Cir. June 17, 1965, the district court held that consent existed on similar facts. The court said “consent is strongly implied from the giving of clear, concise and explicit directions to the police both as to what to seek and where to seek.”

If more need be said in justification for this search, we note in canvassing the record that (unmentioned in either the Arkansas opinion or the federal habeas corpus opinion) defendant’s wife escorted the two deputy sheriffs to her house on Sunday when the murder weapon was retrieved. Deputy Sheriff Lewis testified as follows:

“Q. Did you go get it [the murder weapon]?

“A. I went and got it.

“Q. Who went with you ?

“A. Officer McDaniel and we was escorted by Mrs. Norma Jean. “Q. Norma Jean Haire?

“A. Yes, sir.

“Q. This was on Sunday?

“A. Yes, sir.”

Since the Arkansas court and particularly the federal district court decided this case on the record, we feel free to “draw upon the cold record.” Compare Mr. Justice Blackmun’s coneur-ring opinion in Dutton, Warden v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

We have specifically held that the wife of a defendant could consent to the search of her home. Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). In Roberts the wife of the defendant told the officers that her husband had owned a pistol and approximately one year before he had fired it into the ceiling of their home. With her consent the officers went to the home and retrieved the bullet which was subsequently identified as having been fired from the murder weapon.

We must bear in mind that this was a limited search and that the Fourth Amendment only prohibits unreasonable searches. Both Mrs. Haire and her husband were completely cooperative and it can only be inferred that they wanted to make a clean breast of the murder, and there was nothing unfair or unreasonable about the search and seizure. The officers in this case did only what was reasonable and practical under the circumstances. They would have been derelict in their duty if they had not accompanied Mrs. Haire to her home and retrieved the murder weapon where defendant said it was located. Reasonable-less is in the first instance for the district court to determine.

Defendant argues that there could be no effective consent to search his house in the absence of a warning of his rights under the Fourth Amendment. He relies on Wren v. United States, supra, but in Wren no such warning was given and the search was upheld. Also, defendant relies on United States v. Blalock, 255 F.Supp. 268 (E.D.Pa.1966), but the district court’s view in Blalock has been rejected by the First Circuit in Gorman v. United States, 380 F.2d 158 (1st Cir. 1967), and in United States ex rel. Combs v. LaVallee, 417 F.2d 523, 525 (2nd Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970), the court said “The courts are competent to determine whether valid consent has been given absent such warnings.” In this case the evidence was sufficient to support a verdict of first degree murder.

Appellate courts, in their zeal to protect a defendant, are sometimes prone to overlook that the object of a criminal trial is to determine the guilt or innocence. It would be a great miscarriage of justice to reverse this case and a greater injustice to extend the Miranda rule. The very able counsel for defendant in this case has done what can be done from the record in any extended criminal trial. He has combed the record and presented appealing, while invalid, arguments, but we know of no stronger evidence obtainable, short of a full and complete confession, than for defendant to voluntarily without interrogation tell the officers where the body and the murder weapon were located, both of which linked defendant inescapably to the crime.

The judgment denying the petition for habeas corpus is affirmed.

1 . There are no racial overtones in this case. Defendant is a Negro, the two deputy sheriffs who conducted the investigation are Negroes and the state prosecutor is a Negro.

2 . “STIPULATION

“It is stipulated and agreed by and between the parties as follows:

“1. That the Process Server’s Book in the office of the Sheriff of Pulaski County shows at Page 261, Line 19, that a search warrant for the premises of L. V. Haire was received in the Sheriff’s office on May 8, 1967, and returned May 9, 1967, by Deputy Sheriffs Lewis and McDaniel. The notation shows that the warrant was procured by Clay Robinson, who was a Deputy Prosecuting Attorney at that time, and that shoes and trousers were found.

“2. That diligent inquiry by both counsel for petitioner and counsel for respondent failed to reveal either a warrant or an affidavit for the same.

“3. That the Honorable Clay Robinson, formerly Deputy Prosecuting Attorney for Pulaski County, is presently unable to remember whether a warrant was issued in this case, and that Mr. Robinson, if called as a witness in this case, would testify that he procured many warrants during his service as Deputy Prosecuting Attorney for Pulaski County and that he cannot specifically recall all of the warrants that he procured.

“This stipulation entered into this 19th day of September, 1969.”