Carl D. Pettyjohn v. United States

TAMM, Circuit Judge:

Appellant seeks reversal of his conviction of first degree murder (22 D.C.Code § 2401 (1967)).¹ Since we find that none of appellant’s three allegations of error necessitate reversal, his conviction must be affirmed. Only two of these allegations require discussion.

Undisputed testimony adduced at trial reveals that at approximately 1:30 a. m. on August 4, 1966, appellant drove his car alongside another vehicle in the northwest section of Washington, D. C., and twice fired a shotgun into that vehicle wounding one of its three occupants. Appellant then “pulled” Miss Barbara Thomas, one of the occupants, into his own automobile and drove away. At approximately 2:40 a. m. appellant entered the Twelfth Police Precinct in the District of Columbia. Sergeant Brown testified that appellant approached him and stated that “he wanted to turn himself in” because he had shot and killed one man and “ha[d] also killed his girl friend.” Upon query by the officer as to where his girlfriend was appellant answered “She’s on the front seat of my car and my car’s parked on the rear lot.” Sergeant Brown left appellant in the custody of another officer and proceeded to the parking lot where he discovered Miss Thomas strangled to death on the front seat of appellant’s car. Upon returning to the precinct house Sergeant Brown formally placed appellant under arrest.²

At this point there is somewhat of a conflict in testimony. A pretrial hearing on appellant’s motion to suppress was conducted by the court. During this hearing Sergeant Brown testified that immediately after placing appellant under arrest he produced his PD-47 card ³ and began to read it. A telephone interruption intervened and the officer handed appellant the card to read. Upon completion of the telephone call Sergeant Brown testified that he asked appellant if he had read and understood the card and appellant responded in the affirmative (Tr. 46). Sergeant Brown testified that he then queried appellant as to whether he wanted a “legal neighborhood lawyer.” Appellant answered in the negative.

Detective-Sergeant Crooke (a member of the Homicide Squad who was called to the Twelfth Precinct by Sergeant Brown) testified that he approached appellant, advised him that he was under arrest, and told him that he was charged with homicide. Next, Detective-Sergeant Crooke asked appellant if he had been advised of his rights. Upon an affirmative response the officer testified that he read his PD-47 card to appellant (Tr. 61). In addition, the officer testified that he specifically told appellant that “if he couldn’t afford a lawyer * * a lawyer would be obtained for him” (Tr. 62). After issuing these warnings, Detective-Sergeant Crooke asked appellant if he wanted to “talk about” the crime (Tr. 76). Appellant said that he did and the officer testified that they conversed from approximately 2:50 a. m. until shortly after 3:00 a. m. The officer testified that he took notes during the conversation. The officer further testified that appellant described generally the events leading up to the murder. Included within this narrative was appellant’s statement that “[s]he already knew I was going to kill her. I told her I was going to kill her * * * last Sunday” (Tr. 67). At the conclusion of this discussion the officer asked appellant if he “wanted to give a typewritten statement of what he had said” (Tr. 67). Appellant responded in the negative and the officer testified that appellant said: “No, I already told you about it and you wrote it down” (Tr. 67). At this time the discussion was terminated and the officer left the Twelfth Precinct with appellant and took him to the Homicide Squad office. Upon arrival at the homicide office at approximately 3:15 a. m. the officer produced police form PD-54 ⁴ and read it to appellant. Appellant signed this form (see Tr. 70-71, Government exhibit No. 2) after it was read to him. Upon completion of this signing the officer again asked appellant if he wished to make a typewritten statement. Appellant again answered “no” and was locked up until 10:00 a. m. the following morning, at which time he was arraigned before a United States Commissioner. Detective-Sergeant Crooke testified that he did not take appellant before a commissioner at 3:00 a. m. because he was not “aware that a United States Commissioner * * * is available at any time of the day or night to arraign defendants charged with a crime.” (Tr. 64.)

Appellant took the stand during this pre-trial hearing.⁵ Appellant’s counsel sought to suppress all of appellant’s statements other than the initial threshold admission that he had killed his girl friend. During this hearing appellant testified that he did make such an admission. He initially denied, however, that Sergeant Brown ever gave him the PD-47 card to read (Tr. 79) but on cross-examination admitted that he did receive the card, but never read it (Tr. 79C-D). Appellant testified further that no one ever read the card to him and that when the officers asked him if he wanted a lawyer he thought they meant his own “personal lawyer” (Tr. 83). Since appellant could not afford to pay for such a lawyer he said he didn’t want one. Appellant denied that either officer ever told him that he could have a “free one” (Tr. 79-B). In essence, the main thrust of appellant’s testimony was to contradict the officer’s testimony while simultaneously asserting a claim that he did not understand what was happening.

After oral argument by both counsel the trial judge ruled that appellant’s statements to Detective-Sergeant Crooke were admissible but that the PD-54 form and testimony regarding it were inadmissible. In explanation, the trial judge stated that the questioning at the Twelfth Precinct was no.t a violation of appellant’s constitutional rights but that he should have been brought before a commissioner as soon as he indicated he didn’t wish to discuss the matter any more. We affirm the trial judge’s ruling..

I

Appellant’s first allegation of error is that all statements made by him to Detective-Sergeant Crooke were inadmissible at trial because they were given in violation of appellant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). We recognize and certainly agree that

[i]f * * * interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. (Citation omitted.)

384 U.S. at 475, 86 S.Ct. at 1628.

At the outset of our discussion we wish to reject, as did the trial judge, a proposition submerged in the murky waters that surround meaningful waivers. We are unable to accept the thesis that no one can ever intelligently waive an important constitutional right voluntarily or that no one who is reasonable or intelligent would ever commit a criminal act. A quick glance at the upper echelon of organized crime in this country should suffice to undercut the credence of the latter portion of this proposition. Thus, we conclude that, under the law today, it is possible for a person to waive his right to remain silent and to wish to voluntarily discuss the action that he had so recently taken which must have weighed so heavily on his mind.

Since it is. possible, we must now look to see if appellant did meaningfully waive his right to counsel. At this point we note that this is a case, unlike Miranda,, of a person entering a police station and, before the utterance of a word by the police, confessing to a murder. In fact, the Court in Miranda specifically stated that it did 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 (footnote omitted) * * *. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.⁶

We, of course, are unable to and do not endeavor to probe appellant’s mind in an attempt to discover whether he made a meaningful waiver. Instead, we must apply an objective standard⁷ in determining the proper resolution of this issue. Appellant proffers no allegations of coercion by the police, he never repudiated his confession or altered the details thereof, and he did not make prior denials before confessing. In addition, appellant was not harassed or intensely interrogated as was the defendant in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964). Rather, the officer approached appellant and asked him if “he wanted to talk about it.” Appellant answered all questions freely and easily, all the while observing but not objecting to, the officer taking notes. It was only at the conclusion of the discussion, unlike our recent decision in Frazier v. United States,⁸ that appellant expressed a view that he did not wish to make a typewritten statement.⁹ At this point the questioning ceased.

Thus, we must reject appellant’s contention that his unwillingness to make a typewritten statement, at the end of the officer’s questioning, clearly indicates that he never meaningfully waived his constitutional right to remain silent. What appellant said exactly was: “No, I already told you about it and you wrote it down.” This language coupled with testimony that Detective-Sergeant Crooke specifically told appellant several times that (1) he was entitled to remain silent and (2) if he could not afford a lawyer one would be obtained for him, convinces us that appellant did meaningfully and knowingly waive his Fifth Amendment right to remain silent. In reality, after an objective analysis of all the factors and circumstances involved in appellant’s waiver, his position is really reduced not to a claim that he did not understand what he was doing but that what he did was, in retrospect, an unwise thing for him to do. A reversal based upon such a claim would be equally unwise.

II

Appellant’s second contention is that after his arrest he was not promptly taken before a United States Commissioner in violation of Rule 5(a) of the Federal Rules of Criminal Procedure as construed by Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356,1 L.Ed.2d 1479 (1957). The standard applicable in this area of the law has been enunciated by the Supreme Court. In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the Court made it clear that officers of the law could not detain a person for unreasonable periods of time in an effort to obtain a confession by a “third degree” method. Subsequently, Rule 5(a) was promulgated requiring that an arrested person be arraigned “without unnecessary delay.” The Court then held in Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948) and Mallory that the “standard of ‘without unnecessary delay’ implied no relaxation of the McNabb doctriné” (Mallory v. United States, supra, at 453, 77 S.Ct. at 1359).

Upon inspection of the record below, we find that appellant cannot prevail on his Mallory contention for two reasons. First, we disagree with appellant’s claim that he has a right to be given his “warnings” by an impartial judicial magistrate despite the fact that he had already been informed of his rights by the police and had agreed to discuss the crime with them. We feel that appellant’s argument here borders on the absurd. Surely the law does not allow a person to voluntarily discuss the crime to which he has just confessed for a period of some twenty minutes and then claim on appeal that the twenty minute period during which they spoke constituted a prejudicial delay in violation of his right to rapid arraignment. What appellant has lost sight of and what needs illumination in this area of the law is the interplay between Miranda and Mallory. We find that appellant, by validly waiving his Miranda right to silence and an attorney, and by agreeing to speak with the police, has thereby also waived any Mallory right to be brought before a magistrate “as quickly as possible.” Mallory, supra, at 454, 77 S.Ct. 1356. Indeed, we had occasion recently to articulate this limitation that Miranda has effected upon the earlier Mallory decision. In short, we held that [a] valid Miranda waiver is necessarily * * * also a waiver of an immediate judicial warning of constitutional rights (footnote omitted.)¹⁰

Thus, in this case, we hold that appellant waived any Mallory claim to immediate arraignment by voluntarily agreeing to speak with the police. Accordingly appellant’s statements, given during this period, were properly admitted into evidence.

Secondly, appellant’s Mallory contention cannot prevail because, notwithstanding any Miranda waiver, the statements complained of here were not given during a period of unnecessary delay and hence the delay of seven hours in bringing appellant before a magistrate cannot retroactively vitiate an otherwise valid confession.¹¹ The Supreme Court held long ago, in a case where the accused confessed to the police within a few minutes after his arrival at the police station and then was detained for eight days prior to arraignment, that

the illegality of Mitchell’s detention does not retroactively change the circumstances under which he made the disclosures. These * * * were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct.

United States v. Mitchell, 322 U.S. 65, 70-71, 64 S.Ct. 896, 898, 88 L.Ed. 1140 (1944). We agree with Mr. Justice Frankfurter’s (the author of both McNabb and Mallory) eloquent description of the proper use of judicial power with regard to the promotion of justice in the society in which we live.

Lastly, appellant seems to argue tacitly that Mallory is an absolute bar to any questions, regardless of the accused’s willingness to discuss the crime, between arrest and appearance before a magistrate. We put this contention to rest in 1965 in Alston v. United States, 121 U.S.App.D.C. 66, 68, 348 F.2d 72, 74 (opinion of Judge McGowan):

this literalness in the reading of Mallory (the argument that no question may be asked of the accused between arrest and arraignment) is an excessive exaltation of opinion over decision, and that, absent a further direct admonition from the Supreme Court that there can be no questioning whatsoever, its earlier opinion in Mitchell * * * continues to have vitality and provides the warrant for the admissibility of so-called threshold confessions.

Such further admonition has not emanated from the Supreme Court since 1965.

In sum, we hold today that appellant’s statements to the police were properly admitted since the record reveals that appellant did voluntarily and meaningfully waive his right to remain silent. Further, this waiver was also thereby a waiver of his right to immediate arraignment and, in any event, appellant’s statements were not given during a period of unnecessary delay. Accordingly, appellant’s conviction is

Affirmed.

1 . Appellant was sentenced to life imprisonment on this count. He was also convicted on two counts of assault with a dangerous weapon (22 D.C.Code § 502) and was sentenced to three to nine years on each count, to run concurrently with his life sentence on the first count.

2 . Exactly when the arrest occurred is not crucial to our disposition. It is at least arguable that as soon as appellant announced he had taken someone’s life he was no longer free to leave the precinct.

3 . The PD-47 card states as follows:

WARNING AS TO YOUR RIGHTS You are under arrest. Before we ask you any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer present you will have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

4 . The PD-54 form is identical to the PD-47 card with the addition of the following paragraph:

Consent to speak

I know what my rights are. I am willing to make a statement and answer questons, I do not want a lawyer. I understand what I am doing. No promises or threats have been made to me or used against me.

5 . Appellant testified at this pre-trial motion to suppress hearing for the limited purposes of that hearing alone and he did not waive his Fifth Amendment right against self-incrimination. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Bailey v. United States, 128 U.S.App.D.C. 354, 389 F. 2d 305 (1967).

6 . Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

7 . By objective standard we mean that the validity of any Miranda waiver must be determined by the court’s inspection of the particular circumstances involved, including the education, experience and conduct of the accused as well as the credibility of the police officer (s) testimony. The court will then objectively assess all the aforementioned factors and determine whether the waiver was valid. The Supreme Court set down this type of standard even before Miranda in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thereafter, the Court in Miranda re-asserted this standard. 384 U.S. at 475, 86 S.Ct. 1602, 16 L.Ed.2d 694. See also United States v. Hayes, 385 F.2d 375, 377 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968).

8 . 136 U.S.App.D.C.—, 419 F.2d 1161 (decided March 14, 1969).

9 . At the time this case was argued the Frazier decision had not yet issued and was not relied upon by appellant’s counsel. The court, of course, is fully cognizant of Frazier’s teaching and we find that appellant’s waiver was “voluntary in the full sense of the word.” Frazier v. United States, supra note 8, 136 U.S.App.D.C. -, 419 F.2d 1166, n. 24. In so finding we have determined that appellant was “adequately and effectively apprised of his rights.” Id. 136 U.S.App.D.C. at —, 419 F.2d 1168, n. 31, quoting from Miranda v. Arizona, supra, note 6, at 467, 86 S.Ct. 1602. Thus, we feel that under the test set out in Frazier appellant knowingly and meaningfully waived his right to remain silent.

10 . Frazier v. United States, supra note 8, 136 U.S.App.D.C. at -, 419 F.2d at 1166.

11 . Since we find that there was no Mallory violation, we do not reach the thorny questions of whether Mallory has been limited by recent Congressional enactments or whether the statutory standards should be applied retroactively. See Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197 (1968); District of Columbia Crime Bill, 81 Stat. 734 (1967). In this regard, see also Frazier v. United States, supra note 8, 136 U.S.App.D.C. at -, 419 F.2d at 1171, nn. 2, 3 (dissenting opinion of Judge Burger).