James W. Killough v. United States

WASHINGTON, Circuit Judge.

In Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962), a majority of this court en banc held that where a police officer procured illegally, in violation of Fed.R.Crim.P. 5(a), inadmissible oral and written confessions from Killough, it was error to admit at the trial Killough’s second confession to the same police officer made orally at the District of Columbia Jail because it was “the fruit” of the first confessions. We said, inter alia, 114 U.S.App.D.C. at 310, 315 F.2d at 246:

“ * * * the basis for our opinion is that the jail confession was the result of the previous confessions which were invalidly obtained and ■ concededly inadmissible * * *.

-» -x- * X-

“ * * * Our opinion excludes only evidence which is due to a violation by the police of their duty under Rule 5(a). Absent such violation and such relationship our opinion precludes no interrogation.”

On his second trial held pursuant to our reversal and remand, the appellant was again convicted by a jury of the crime of manslaughter and was sentenced by the District Court to serve a term of five to fifteen years. He appeals, asserting that it was error to put before the jury (1) the incriminating statement he gave to a civilian employee at the District of Columbia Jail, and (2) the evidence provided by certain witnesses, including the Coroner and his staff, relating to a dead body, evidently believed by the jury to be the body of the appellant’s former wife, the victim' of the manslaughter.

I.

The present case is not concerned with a confession made to the police, to a law-enforcement agent, or to a person investigating crime. The case concerns a statement, not introduced in evidence at the first trial, made by Killough to a university graduate student, working part-time as a “Classification Intern” at the District of Columbia Jail, under the following circumstances:

On October 25, 1960, Killough was brought before a United States Commissioner and charged with first degree murder. Both the Commissioner and the Deputy Clerk at that time advised him ¹ that he was not required to make any statement; that any statement he made could be used as evidence against him; that he was entitled to retain counsel and to have a preliminary hearing where he or his counsel could cross-examine the prosecution’s witnesses; and that he was_ entitled to a continuance in order to obtain counsel. Killough said he was undecided about possible representation by counsel and the proceedings were by consent of both parties continued until a named date, about 20 days away. Pending this hearing, Killough was ordered committed without bail to the D. C. Jail on the charge of first degree murder.²

On the morning following his appearance before the U. S. Commissioner, Killough was brought by a Jail officer from the eellblock to the visiting room at the Jail, called the “Rotunda,” and was seated at a table with a Classification Intern for an interview. The Intern was 26 years of age and a graduate student at Georgetown University working for the degree of Doctor of Philosophy in history. His duties at the Jail were to interview for 15 hours per week inmates of the Jail. For this he received room and board and a few incidentals such as laundry, shoeshines, etc. Such interviews were routine procedure and were conducted with respect to all inmates. Questions were asked pursuant to an interview form, the first page of which was designed to give information with respect to close relatives or friends of the inmates for purposes of mail and visits. In the case of inmates charged with felonies, further questions were asked with a view to reflecting the inmate’s employment, military, and past prison records, and the inmate’s version of the offense for which he was charged, if he wished to give it, for purposes of classifying him before trial and placing and treating him after trial. The inmate’s answers were recorded on the form by the Intern.

The Intern who interviewed Killough was dressed in civilian clothes and did not identify himself to Killough. He had not been instructed to identify himself and it was his practice not to do so unless he were asked. In response to a specific question he stated that he could not remember whether Killough asked about his identity. He had before him the Jail Classification Form for felony cases, and proceeded to ask Killough questions suggested by the form and to record Killough’s answers on it. The Intern testified that, when he reached the part relating to the offense with which Killough was charged, he stated to Killough “You’re charged with first degree murder. Do you care to tell me about it or make a statement?” Killough replied that he would do so and gave an incriminating account of the manner in which his wife met her death. The Intern wrote Killough’s answer down verbatim and read it back to him. Killough signed it. The interrogation form, showing Killough’s answer and signature, was received in evidence.

The Intern testified that prior to the interview he had had no report from, or conversation with, the police or anyone else about the Killough case, and that his only information about the case had been derived from newspaper accounts that he had read. The Intern stated further that he made no threats or promises to Killough. He testified that when an inmate declines to sign, his usual practice is to tell the inmate that his statement will not be used against him. He testified further that if he is asked by the inmate at any time whether such a statement will be used against him, he responds that it is confidential and will not be used against him. He could not remember whether he told this to Kil-lough. Killough however did not decline to sign when asked to do so. The Intern said that Killough answered the questions willingly and cooperatively, although he appeared nervous and disturbed. At one point he stated that his stomach was “getting upset.” Other classification interviews were being conducted at other tables in the Rotunda simultaneously.

Following a hearing held pursuant to Killough’s motion to suppress the Intern’s testimony and the form containing Killough’s signed confession, the District Court, in an opinion reported at 218 F.Supp. 339 (1963), ruled that the evidence was admissible.³ It found that Killough’s statement to the Classification Intern was not coerced and was voluntary; that it was independent of Kil-lough’s first illegally procured confession to the police, was not the fruit thereof, and was made after adequate time for deliberate reflection. Accordingly, it concluded that our decision in the first Killough case did not require exclusion of the evidence as fruit of the poisoned tree.⁴ Since we are of the view that the Intern’s testimony and the confession are inadmissible for other reasons, we find it unnecessary to review this holding.

II.

Killough had been committed to the care and custody of the Jail. The statement obtained from him was pursuant to routine procedure and the result of questioning designed to provide information for a specific and legitimate purpose related to the Jail’s classification and treatment of persons committed to its care. See Section 24-442 of the D.C.Code, set out in pertinent part in the margin.⁵ Any inmate who inquired was told the identity of the questioner, the purpose of the questioning, and that the inmate’s answers would not be used against him. There can be no doubt that an incriminating statement given in reliance upon such a promise by a jail employee performing a proper jail function pursuant to statutory authority would not be admissible.⁶ We do not think that an inmate who fails to inquire as to the purpose of the questioning and the confidentiality of the answers can be penalized by having his answers turned over to the prosecutor and used against him. When the Jail promises confidentiality to one inmate intelligent, astute, or composed enough to inquire under questioning about the use to be made of his answers, we think there is an implied pledge of confidentiality as to all inmates subjected to the classification questioning. The purpose underlying the questioning confirms this; it was inherently a confidential purpose to enable the Jail best to treat the person committed to its care. The rule of fundamental fairness required by the due process clause in our view does not permit use of the incriminating statements made to the Classification Intern in a criminal prosecution under the circumstances present here.⁷

Indeed, in a somewhat comparable situation, that involving an examination pursuant to 18 U.S.C. § 4244, into the sanity or mental competency of accused to stand trial, Congress has specifically provided that no statement made by the accused in the course of the examination “shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.” The wisdom of and need for such a rule in that situation are obvious, and the rule has been recognized even when a statute does not so provide.⁸ Here, although the classification examination of inmates does not take place pursuant to specific authority-given by Congress, the Department of Corrections, under the direction and supervision of the District Commissioners, is by Section 24-442 of the D.C.Code given “charge of the management and regulation” of the Washington Jail, including the power “to classify the inmates, and to provide for their proper treatment, care, rehabilitation, and reformation.” Incriminating statements obtained from the accused in the exercise of the classification function for purposes of proper treatment and care should not, we think, be admitted as evidence of his guilt, any more than such statements obtained in the course of a mental examination. Not only would it be grossly unfair in the constitutional sense to admit them, but the Jail authorities might well be handicapped in the future in seeking information needed for proper classification, treatment, and care of the inmates.⁹

We hold that the statement obtained from Killough by the D. C. Jail under the routine classification questioning conducted under the procedure followed in this case was not admissible as evidence against him in his trial. His conviction must be reversed and remanded for a new trial. In view of this conclusion, it seems unnecessary to pass upon Killough’s contention that the confession was inadmissible because he had not then had the advice of counsel.

III.

We now proceed to the contention that the District Court erred in admitting evidence offered by the Government relating to the victim’s body. On the first appeal of this case this court did not pass on the admissibility of this evidence.¹⁰ We think, however, that the question should now be decided, since the matter of its admissibility appears certain to be raised in the event of another trial on remand.

At the second trial on remand, following a tender of the evidence, the District Court, 218 F.Supp. at 342-344, ruled that the evidence was admissible. It rejected. the notion that the evidence as proffered relating to the body was fruit of the first inadmissible confession, stating that the challenged evidence did not in any way connect the defendant with the crime. Judge Danaher and I agree that the evidence was admissible.

The Coroner’s testimony before the jury was in substance that on October 25, 1960, he was called to the intersection of Kenilworth Avenue and Jay Street, in the Southeast Section of the District of Columbia, to meet a police captain; that he went with the captain along Jay Street to a spot on the east bank of the Ana-costia River, the road there being unimproved; that he there saw the remains of a human body, partially covered with debris; that the body was practically “destroyed” and was between 15 and .20 feet from the road in a “little open space” with “a lot of brush and a lot of trees all around in the immediate vicinity”; that he pronounced the body dead; that in his opinion it had been dead for a period of 10 to 14 days; and that while he was there the body was lifted into a morgue ambulance and taken to the District Morgue, where an autopsy was performed in his presence. The ambulance driver testified that he picked up a body in the presence of the Coroner at that spot on the named date and transported it to the Morgue. The Deputy Coroner testified that on October 28, 1960, he performed an autopsy on a body in an advanced state of decomposition in the presence of the Coroner who identified the body to him as the body pronounced dead by him as previously described; that he was not able to determine the cause of death or to take a blood sample, but that he did take a sample of head hair from the body, and that the hair had been dyed or bleached to a bright orange-red color. The head hairs were delivered to the FBI.

A licensed undertaker and director of a funeral home testified that on October 26, 1960, he went to the Jail and that Killough there signed in his presence a “release” form, which was put in evidence. The release bearing Killough’s signature “authorized and instructed” the funeral home “to take care of and prepare for burial the remains of Goldie Killough.” The release further contained a statement that Killough certified that “I am the husband of the above named decedent.” The funeral home director stated that he then took the signed release to the District Morgue and a body “at least 80, 85 per cent decomposed” was released to him by the Coroner’s office on the next day. The assistant superintendent at the Morgue identified further Morgue records which indicated that the body of Goldie Killough was released to the funeral home on October 28, 1960.

An FBI agent testified that he examined under a microscope the hairs received from the Coroner’s office and found that the hairs were Negroid hairs which for the most part had been bleached to a red-yellow-brown color but that the few unbleached areas were dark brown to black. A woman friend of Mrs. Goldie Killough had previously testified that the hair of Mrs. Killough (a Negro) was naturally dark brown but that she tinted it to a lighter brown with gold highlights. Another woman friend testified that Mrs. Killough bleached her hair to “kind of a reddish brown.”

It is clear that the evidence of the Coroner and his assistants in no way connected Killough with the body; that connection was established in other ways.¹¹ The mere fact that the body was discovered at the particular time it was discovered because of Killough’s disclosure of its whereabouts in his illegally secured confessions is not determinative. We cannot conclude here, any more than in Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205, cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963), that the body would not have been discovered “but for” Killough’s confession, having regard to the evidence here. Cf. also People v. Ditson and Cisneros, supra note 8, 369 P.2d at 729-731.

The body was near a road, in an open space, close to a heavily populated area, and was only partially covered by debris. The place was very near the home of Killough’s then girl friend (now his second wife), where the police took him into custody. In time the body (or its bones) would have been discovered and would have been identified as that of Mrs. Killough. Friends and relatives had for some time been concerned about Mrs. Kil-lough’s unexplained disappearance and had been pressing Killough to explain it to them and to report it. One of them had even called the missing persons bureau. The police had interviewed Kil-lough about the disappearance and had discovered discrepancies, if not untruths, in his story. They had found blood on the mat in the trunk of Mrs. Killough’s car and had evidence that the blood type was that of Mrs. Killough.

We note further that the Government had an additional item of evidence against Killough. A nurse employed at the Jail testified that Killough became an inmate orderly in the hospital unit at the Jail, where he worked with or around her. She said that she had had conversations with him and that sometime after June, 1961, he brought some papers relating to criminal charges against him to her to read; that when he showed her the papers, she asked him what had happened, and that he made certain incriminating statements to her. Killough does not argue to us that the nurse’s testimony was inadmissible, although at the trial his counsel indicated without stating his reasons that he “wanted” to object to it. We express no conclusion as to its admissibility here, although we may note that no reason for excluding it is readily apparent.¹²

We are constrained to hold that the admissibility of the evidence discussed in this Part, even including the testimony of the Jail nurse, does not justify affirmance of the conviction, in view of the error discussed earlier. See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

* * *

The case is reversed and remanded for a new trial, if the Government chooses to proceed with one, with directions to exclude the evidence based on the Classification Intern’s interview.

So ordered.

1 . See the facts stated by Judge Youngdahl in United States v. Killough, 193 F.Supp. 905, 908 (D.D.C.1961). >

2 . Killough spoke with a friend before being taken to the Jail and again on the next morning, and at one of these meetings, probably at the second one at the Jail, requested the friend to secure an attorney.

3 . The District Court had only the Intern’s testimony before it. Killough himself did not testify as to the circumstances under which the interview was held at the hearing on his motion, held outside the jury’s presence, and he did not testify at his trial.

4 . Cf. Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944), upholding the admissibility of a confession made to a prison warden some 12 hours after an inadmissible first confession to tbe prosecutor and police officers. Tbe Lyons • case differs from this, however, in that the warden there questioned Lyons for the purpose of securing a confession to be used against him and so warned Lyons.

5 . “The Department of Corrections with the approval of the Commissioners shall have power to promulgate rules and regulations for the government of * * * [penal] institutions and to establish and conduct industries farms, and other activities, to classify the inmates, and to provide for their proper treatment, care, rehabilitation, and reformation.”

6 . See Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20, 23 (1935), approving a jury instruction that if the jury found that the accused was told by the jail warden in whose custody he was that his incriminating statements would not be used against him, the statements made to the warden should be entirely excluded from consideration; State v. Rush, 108 W.Va. 254, 150 S.E. 740 (1929), holding that admissions by the accused with respect to account shortages made to a bank examiner, having statutory authority to examine bank officers, were not admissible when made in reliance on a representation by the examiner that statements could not be used against him in a criminal prosecution. Cf. State v. Foster, 25 N.M. 361, 183 P. 397, 7 A.L.R. 417 (1919); Annot., 7 A.L.R. 419 at 432.

7 . In Tyler v. United States, 90 U.S.App.D.C. 2, 193 F.2d 24 (1951), cert. denied 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326 (1952), the accused was interviewed by the supervisor of classification at the jail, apparently under a somewhat different procedure from that used in this case. At least no question as to the admissibility of incriminating admissions made to the supervisor during the interview was there raisod, and the supervisor’s testimony appears not to have shown the practice of promising confidentiality to inmates who-inquired, if indeed the practice then existed.

8 . See State v. Myers, 220 S.C. 309, 67 S.E.2d 506, 32 A.L.R.2d 430 (1951), where the court said:

“We do not undertake now to define the limits of such [constitutional] rights except to say that the authorities of that institution [the State Hospital] will not be permitted, over the protest of the accused, to reveal any confession made by him in the course of such [sanity] examination, or any declarations implicating him in the crime charged.”

Cf. however, Hall v. State, 209 Ark. 180, 189 S.W.2d 917 (1945), where the statute provided that the doctor making the report to a court of a sanity examination might be called to testify by the court or either party, and the court held that the doctor could testify as to a confession made in the course of the examination. People v. Ditson and Cisneros, 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714 at 732-733 (1962), cert. denied and dismissed as to Cisneros, 371 U.S. 852, 937, 83 S.Ct. 93, 9 L.Ed.2d 88 (1962), involved as to Cisneros a similar statute and holding as to the testimony of court-appointed alienists where the plea was not guilty by reason of insanity. As to Ditson, certiorari was granted and the judgment vacated, 371 U.S. 541, 83 S.Ct. 519, 9 L.Ed.2d 508 (1963), but later the opinion was withdrawn and the petition dismissed for mootness, 372 U.S. 933, 83 S.Ct. 885, 9 L.Ed.2d 769 (1963).

9 - It is of course not our function in this case to pass upon the validity of the classification procedure at the Jail, and we intimate no opinion as to the propriety of any of the questions listed on the questionnaire form here used, or as to any of tlie procedures used in this case, including the request to the prisoner for his signature.

10 . Judge Eahy’s opinion, in which three other judges joined, stated that it was unnecessary to pass upon the admissibility of the evidence; Judge Wright thought that such evidence should be held inadmissible; Judge Burger’s dissenting opinion stated that the four dissenting judges would admit evidence as to the body.

11 . Ás already indicated Killougli liad acknowledged that Mrs. Killougli was dead by authorizing the funeral home to take her body and prepare it for burial. The condition of the body received by the funeral director from the Morgue was the same as that described by the Coroner and the Deputy Coroner; the FBI agent and two friends of long standing showed that the corpse’s hair was similar to that of Mrs. Killough.

12 . We add, however, that in United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947), a second confession made to an FBI agent six months after the making of an inadmissible first confession was held properly admitted where the accused was not under actual arrest and where he was specifically warned before making the ■ second confession that anything he said might be used against him. Here, when Killough made the statement to the nurse, he had already been convicted of manslaughter at the first trial, and was in jail pursuant to that conviction; at least nine months had passed since he was apprehended; the statement involved was made to a fellow worker, not the police or other investigating agent, and was not immediately preceded by a warning. The opinions of Judge Fahy and Judge Wright in the first Killough case suggest that the Bayer ease must now be considered in the light of the Mallory rule: 114 U.S.App.D.C. at 310, 315, 315 F.2d at 246, 251.