Colon D. Lockley, Jr. v. United States ( 1959 )

WILBUR K. MILLER, Circuit Judge.

Colon D. Lockley was tried under four counts of an indictment. The first charged that he and one David Blackney entered a building of Morris Pollin & Sons with intent to steal property of another; the second charged that Lock-ley and Blackney stole copper tubing valued at $30.00, the property of Harry E. Nau & Company; the third count charged they entered a building of Harry E. Nau & Company with intent to steal the property of another; and the fourth accused them of stealing property of Harry E. Nau & Company having an aggregate value of $365.00, the items and values being enumerated. Lockley denied having participated in the commission of the crimes and, rather inconsistently, pleaded insanity. He stipulated that the housebreaking and larcenies occurred, so the only issues were whether he committed them and, if so, whether he was sane when he did so.

Convicted under all four counts, Lock-ley received a sentence of from 16 months to four years on Nos. 1, 3 and 4, and one year on No. 2. He appeals. Since the four sentences were concurrent, an af-firmance of the judgment with respect to any one of Counts 1, 3 and 4 is sufficient to sustain the maximum term the appellant has been sentenced to serve. For the reasons hereafter given, we affirm the conviction under Count 3, which charged entrance into a building of Harry E. Nau & Company with intent to steal property of another.

The officer who arrested Lockley in his room at about 4:30 a. m. July 24, 1956, testified that appellant admitted going with Blackney to a place in the 1400 block of Rittenhouse Street, N. W., where Blackney broke open a construction shed and stole a “drive-it” gun. This was the offense charged in Count 3 of the indictment. The oral confession, the officer said, was made within 15 minutes after the arrest.

Following the confession in the room where the arrest was made, certain officers drove Lockley around the city to the scenes of various breakings which were being investigated and at about 6:30 a. m. arrived with him at the precinct. At 9:10 a. m. an officer began typing a confession which Lockley signed when it was completed. The written admission repeated the oral confession as to the breaking of the Nau Company’s construction shed and added some details as to the loot obtained and its disposition. Lockley was arraigned at 1:45 p. m. on the same day. It does not appear that he was questioned, or that he made any statement, after he signed the written confession which was typed pursuant to interrogation which must have been completed by about 9:00 a. m.

Lockley did not testify that the oral confession was involuntary, but said he did not make any such statement to the arresting officer. Thereupon the Government offered the written confession for the sole purpose of attacking his credibility, and it was admitted for that purpose only under the doctrine of Walder v. United States, 1954, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503.¹ Lockley testified, and the officers denied, that the written confession was extorted from him by police brutality.

Lockley contends the oral statement to the officer was inadmissible under Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. He argues the written confession was not admissible as proof of guilt² because it was involuntary and taken in violation of the Mallory rule; that the Walder case is distinguishable, so the written statement was not admissible even for the limited purpose of impeaching his credibility.

As to Lockley’s contention that the oral confession was inadmissible under the Mallory decision, little need be said. Made within 15 minutes of the arrest, the oral confession does not fall within the doctrine of that case. As to the written confession, we deem it unnecessary to decide whether it was admissible as an attack on credibility under the Walder rule because we hold it was admissible generally,³ for reasons which follow.

Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. requires that “An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.”

We read the Mallory case as holding that even a voluntary confession given by a prisoner during an unnecessary delay in arraignment is inadmissible, regardless of whether the delay caused him to confess. The Mallory opinion says, 354 U.S. at page 453, 77 S.Ct. at page 1358, that in the McNabb case (McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819)

« * * * Court held that police detention of defendant beyond the time when a committing magistrate was readily accessible constituted ‘wilful disobedience of law.’ In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention.” (My emphasis.)

The first question is whether the written confession was taken during “a period of unlawful detention” or, stated in another way, during a period of unnecessary delay in arraignment. As has been said, Lockley was arrested about 4:30 a. m. and was arraigned about 1:45 p. m. Detaining him from 4:30 a. m. until the opening of the courts that morning- — probably about 9:00 a. m. — cannot be said to have been unnecessary, for there is no requirement that a committing magistrate be available at all hours.⁴

Lockley’s detention from about 9:00 a. m. to 1:45 p. m., when he was arraigned, may have been unnecessary. But it does not appear that he made any statement during that period. A confession given during a period of necessary delay in arraignment is not inadmissible because that period was followed by a period of unnecessary delay. United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140. In the Mitchell case, as here, the prisoner confessed before the beginning of the period of unlawful detention, that is, before unnecessary delay in arraignment. The confession was held admissible.

The Mallory opinion says, 354 U.S. at page 454, 77 S.Ct. at page 1359, “* * * [H]e [an arrested person] is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” But here the police already had the oral confession concerning the Nau & Company breaking, so there is no reason to suppose they took Lockley to the precinct for the purpose which the Mallory case condemns. The written confession added nothing substantial to the early oral admission with respect to the breaking charged in Count 3.

The stipulation and the oral confession were sufficient to justify the jury in finding, as it did, that Lockley aided Blackney in breaking into Nau & Company’s construction shed with intent to steal, as charged in Count 3.

We do not agree with appellant’s complaint that the Government’s evidence tending to prove sanity was not sufficient to convince a reasonable jury. There was conflicting testimony on the subject which the jury resolved by finding Lock-ley was sane when the crimes were committed. We see no reason to disturb the verdict.

Affirmed.

BURGER, Circuit Judge, dissents and reserves the right to file a statement of his views.

1 . In its charge the court carefully limited the jurors to considering the written confession for impeachment purposes only, and instructed them not to consider either admission unless they first found it to be voluntary.

2 . It was not introduced for that purpose, as we have said.

3 . If that bo true, Lockley was not prejudiced by the receipt of the confession for the sole purpose of impeaching his credibility.

4 . In Porter v. United States, 1958, 103 U.S.App.D.C. 385, 392, 258 F.2d 685, 692, Mr. Justice Reed, retired from tlie Supreme Court and sitting hereby designation, said:

“ * * * Surely a man arrested Tuesday night at eleven o’clock for assault need not be taken before a magistrate until the next morning. No one will assert, without specific proof, that the personnel of our police departments are so regardless of court rulings on interrogation as to require every prisoner to be taken before a magistrate at midnight for every kind of offense or before the opening of the courts in the morning.”