258 F.2d 685 (D.C. Cir. 1958), 14305, Porter v. United States

• Citation: 258 F.2d 685
• Party Name: Charles S. PORTER, Appellant, v. UNITED STATES of America, Appellee.
• Case Date: June 26, 1958
• Court: United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit

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258 F.2d 685 (D.C. Cir. 1958)

Charles S. PORTER, Appellant,

v.

UNITED STATES of America, Appellee.

No. 14305.

United States Court of Appeals, District of Columbia Circuit.

June 26, 1958

Argued May 14, 1958.

Petition for Rehearing In Banc Denied Sept. 19, 1958.

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Mr. James R. Scullen, Washington, D.C. (appointed by this Court) for appellant.

Mr. John W. Kern, III, Asst. U.S. Atty., Washington, D.C., with whom Messrs. Oliver Gasch, U.S. Atty., and Carl W. Belcher, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before REED, Associate Justice of the Supreme Court, retired, ^[*] and BAZELON and BURGER, Circuit Judges.

REED, Associate Justice, sitting by designation.

A welter of incidents tinged with liquor and sex resulted in a man's death. The appellant was convicted of manslaughter and sentenced to three to ten years imprisonment. The same court-appointed counsel represented the accused at the trial and in this Court. After denial by the trial court of a motion to proceed on appeal in forma pauperis, this Court allowed such appeal.

The appellant's sole ground for reversal is admission of a 'second confession,' so denominated by appellant, though it might more accurately be called a statement

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of events preceding the death. Objection was duly made on the ground that the statement was taken during detention by police in violation of Rule 5(a) and (b) of the Federal Rules of Criminal Procedure. ¹

We understand that the rulings and decisions of the Supreme Court on the admissibility in criminal trials of statements or confessions of the defendant after arrest and before commitment proceedings are to be applied with the following considerations in mind.

Such cases call for inquiry as to whether Rule 5(a) has been violated. If it has, the admission of such statement, over defendant's objection, and if it is material, is an error that requires reversal.

The significant words are 'shall take the arrested person without unnecessary delay before the nearest available commissioner' or other properly empowered officer. That phrase, "without unnecessary delay,' is a compendious restatement, without substantive change,' of the various former statutory requirements for prompt presentation of an arrested prisoner before an authorized magistrate. ² The phrase appeared in the Preliminary Draft of the Advisory Committee on Rules of Criminal Procedure (1943), p. 11, issued after McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and was employed in lieu of the words 'immediately' and 'promptly,' referred to in that case, 318 U.S. at page 342, 63 S.Ct. at page 614.

The Preliminary Draft included a subsection (b). ³ This was dropped later. The Advisory Committee and the Supreme Court, at the time of their adoption of the Rules, were familiar with the former commentary, p. 266, of the American Law Institute on its proposed Code of Criminal Procedure (1930), section 39 concerning preliminary examination. ⁴ That commentary called attention to Scotch practice. The draftsmen of Rule 5 and the Supreme Court did not accept the suggestion of the 'simplest, clearest, and apparently the most effective' rule against police interrogation. 'In Scotland, 'Interrogations of arrested persons by the police are forbidden * * * " Preliminary Draft, supra, p. 14. Use of statements, too, received under such circumstances, could have been forbidden. They were not.

Instead, the Supreme Court pointed out in the McNabb case, supra, 318 U.S. at page 344, 63 S.Ct. at page 614 that the police must act 'with reasonable

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promptness'; 318 U.S. on page 346, 63 S.Ct. on page 615 'the mere fact that a confession was made while in the custody of the police does not render it inadmissible.' Cf. United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48. In United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, although the defendant was eventually illegally detained following prompt confession after arrest, the prosecution's introduction of his statement in evidence was approved. Thus the holding was that later 'illegal detention did not render inadmissible his prior confessions.' ⁵ Confession or statements to police, after assest and during illegal detention, not in the presence of a commissioner or other official authorized to hold hearings and advise the prisoner of his rights, are inadmissible. ⁶

Illegal detention under the Federal Rules occurs when there is 'unnecessary delay' in the preliminary hearing preceding the statement. The statement is then inadmissible whether it is voluntary or involuntary in the common law or due process sense. ⁷ In England, prisoners' statements to officers are admissible although made after arrest, if proper caution as to their rights has been given by the officer. ⁸ The judge, however, may admit the statement even if taken contrary to the Judges Rules, if he concludes it would be fair to do so. ⁹ In Canada, a preliminary caution as to his rights is required before statements after arrest are allowed in evidence. ¹⁰ Australia applies the English Judges Rules as England does. It was said in R. v. Jeffries, (1947) 47 S.R. (N.S.W.) 284, at pp. 313-314:

'The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice and such investigations must not be unduly hampered. * * * Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence.' Cf. 30 Australian L.J. 60.

The statutory direction to 'produce a prisoner before a magistrate without unnecessary delay' is not a measure as definitive as the standard yard. It did have a background of interpretation, however, when it appeared in the Rules. ¹¹'Without unnecessary delay' had been used in New York at least since 1887, Code of Criminal Procedure 165, and in Illinois since 1874, Smith-Hurd Criminal Code 660. Disregard of the duty of arraignment, it was held in People v. Mummiani, 258 N.Y. 394, 396, 180 N.E. 94, 95, 'does

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not avail, however, without more to invalidate an intermediate confession.' People v. Alex, 265 N.Y. 192, 194, 192 N.E. 289, 94 A.L.R. 1033. Of course, evidence of illegal detention is admissible on the question of coercion. People v. Elmore, 277 N.Y. 397, 14 N.E.2d 451, 124 A.L.R. 465. Thus they differ from the federal rule.

Both New York and Illinois recognize that the rule for production 'without unnecessary delay' is during the ordinary professional hours of commissioners and judges.

'Furthermore, his detention was not unlawful, for section 7 of division 6 of the Criminal Code, Ill.Rev.Stat.1947, chap. 38, par. 660, does not require that courts of committing magistrates shall be open on Saturday night, Sunday, and Sunday night in order to enable peace officers to bring an arrested person before one for arraignment when, during all that time, the crime committed has not been fully solved in respect to the identity of other participants, and the arrested person's connection therewith is still under investigation.' ¹²

This is the view of the Supreme Court, Mallory v. United States, 354 U.S. at page 453, 77 S.Ct. at page 1359. Police detention was willful disobedience of law 'when a committing magistrate was readily accessible.'

We turn now to the application to this case of these rulings. The people and courts of this Nation are one in their desire to support police efforts to detect and punish crime, and equally concerned with assuring a defendant of a fair and just trial. The value in enforcement of careful interrogation of suspects is recognized and encouraged until such time as a suspect is taken into custody. The danger of alarm to accomplices or flight by suspects before arrest complicates such preliminary investigations. On arrest the prisoner must be taken before any reasonably accessible magistrate without unnecessary delay. But until there is such an opportunity to reach such an official, the Supreme Court has not held reasonable questioning without more of prisoners must cease. Each case depends upon its own facts as to what is or is not unnecessary delay.

The significant testimony concerning the investigation and trial of this homicide is this. After a fist fight with decedent, around 1:30 P.M., Tuesday, July 31, 1956, in appellant's apartment, over decedent's association with appellant's wife, both decedent and appellant being 'half drunk,' appellant forcibly ejected decedent from the room, down a short flight of cement steps, with a final shove through the door onto the sidewalk. There decedent fell upon the tree strip between the walk and the highway. An abrasion was on his skull near the ear when decedent was picked up by the police, on a call from the apartment. He was locked up at No. 11 Precinct at 2:55 P.M., Tuesday, as intoxicated.

It developed that the head injury was more serious than the police realized at first. He was taken by them to D.C. General Hospital and admitted at 7:25 P.M. An emergency operation on the brain followed and he died Wednesday morning at 9:55 o'clock.

Meanwhile, word having reached the precinct of the seriousness of the injury, appellant was arrested Tuesday night about 10:30 at his mother's home by Detective Reinhardt, charged with assault with a dangerous weapon, to-wit a trained fist, and made a statement to the same officer, when alone with him, in the Detective Office. Transcription was finished at 11:15 P.M. that day. It appears

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below. ¹³ Next morning, Wednesday, about 9 A.M., Detective Wallace of the Homicide Squad on hospital assignment in a routine check, having heard of the nature of the injury but not the death, was told...