285 F.2d 675 (D.C. Cir. 1960), 15754, Jackson v. United States

Docket Nº:15754.
Citation:285 F.2d 675
Party Name:Lester L. JACKSON, Appellant v. UNITED STATES of America, Appellee.
Case Date:December 06, 1960
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 675

285 F.2d 675 (D.C. Cir. 1960)

Lester L. JACKSON, Appellant

v.

UNITED STATES of America, Appellee.

No. 15754.

United States Court of Appeals, District of Columbia Circuit.

December 6, 1960

Argued Sept. 14, 1960.

Petition for Rehearing En Banc Denied Jan. 12, 1961.

Mr. William B. Bryant, Washington, D.C., with whom Messrs. William C. Gardner and Joseph C. Waddy, Washington, D.C., were on the brief, for appellant.

Mr. Stephen N. Shulman, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., and Carl W. Belcher, Asst. U.S. Atty., were on the brief, for appellee.

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Before WILBUR K. MILLER, Chief Judge, and FAHY and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

We reversed a previous conviction of this appellant because on the record then before us, it appeared that the police had on Sunday, December 14, 1958, 1 purposefully failed to arraign the accused and so had illegally detained him in order to extract a confession. We held to be incompetent a confession so procured and based upon unwarned oral admissions made before a preliminary hearing had been afforded. 2 At a new trial the confession was again received in evidence after a hearing in the absence of the jury, the trial judge having determined that the confession had been shown to be competent. Appellant was again convicted and now presents as the sole issue before us, a challenge to the ruling as to the admissibility of the confession.

The police learned from an undercover informant that four men planned to gain entrance to the home of a local contractor named Marchegiani, and to rob him. On the evening of Friday, December 12, 1958, the police went to the contractor's house, informed him of the plot, and arranged to take up points of vantage in order to intercept and arrest the robbers. About 9:30 P.M. the latter appeared, three of them masked, and at gun point gained entrance to the house. The contractor was forced upstairs to where his wife and daughter were. When the telephone rang, the girl was allowed downstairs to answer it, and the contractor seized the moment to attempt to get possession of a sawed-off shotgun held by one of the robbers.

In the melee, shooting commenced, and Marchegiani was wounded by a robber. One robber, Smawley, was wounded by police and captured as he tried to escape. Another, Cross, the unmasked man, was subdued. A third, Morton, tried to escape and was killed. The fourth man made good his escape. He is our appellant.

We did not previously know, but the present record discloses, that the police immediately-- that Friday night-- broadcast a teletype alarm for the fugitive. The next night the police informant notified the detectives that the man they wanted was Lester Jackson and that there was a fugitive warrant for him from New York State. The informant further said that Jackson was hiding out in Cedar Heights, Maryland, where Maryland police accompanied by District officers arrested him early Sunday morning. Returned to the District by the Metropolitan Police, Jackson was detained throughout Sunday as we explained in our earlier opinion, and was not given a preliminary hearing until about 4:35 P.M.

In the new trial it was further developed that Jackson in his Sunday afternoon oral statement, made before receiving judicial caution, had admitted participation in a Buffalo, New York, robbery. Buffalo police requested Metropolitan Police to interview Jackson further, to secure, if possible, information as to one Jerome Lancaster 'who was still out and wanted in this $28,000 robbery in Buffalo, New York.' Robbery Squad officers went to the jail on Tuesday, December 16, 1958, for that purpose, and we will revert shortly to what happened at that time.

Meanwhile, on Sunday afternoon, appellant's oral admissions shortly before 3 P.M. prompted the police to notify the United States Attorney of developments that a preliminary hearing might be arranged. 3 Sergeant Smith made interim

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preparations to reduce the admissions to writing. The accused was informed by the police of the charge against him, was advised that he need not make a statement, and was promised nothing for his doing so. He was told that the statement if made 'will be used against you in Court.' He replied 'I am willing to make it * * *.'

The statement had been typed out, but not signed by 3:55 P.M. when word came that Judge Fickling at Municipal Court would grant an immediate hearing which occurred at 4:35 P.M. The judge fully advised the accused of his rights under Fed.R.Crim.P. 5, 18 U.S.C.A., and the case was put over for one day to afford an opportunity for the accused to obtain counsel.

From court, the appellant was at once brought back to the office of the Robbery Squad. There the statement was read to the appellant who noted two errors. Corrections were made which he initialed, after which he signed the confession at 5:06 P.M. A little later Sunday evening, at the hospital, the appellant informed the contractor of his regret at having taken part in the venture. He told the victim his version of what had happened and that he had not been coerced to confess. 4

At 7:40 P.M. Sunday night appellant at the victim's Michigan Avenue residence, showed police where he had stationed himself, and outside, disclosed where he had discarded a rope, his masking cloth and a pair of gloves.

Monday, December 15, 1958, Attorney Bryant as counsel appeared with the accused before Judge Smith. The latter noted and counsel agreed that Judge Fickling had accorded judicial caution to the appellant at Sunday's preliminary hearing. Despite such facts, 5 we previously excluded the confession, for judicial caution, as Mallory put it, had come too late, and long after its purpose would have been served. We were of the opinion we had no recourse but to deny the Government any advantage from the protracted and unnecessary delay which had for its object the extraction of damaging statements, not only to support the arrest but to establish guilt. 6

Appellant through his counsel, Mr. Bryant, 7 insists that the exclusionary rule laid down by the Supreme Court requires that we again reverse. He would have us say that the appellant could not validate the confession by later reaffirmation. A majority of the court does not agree with his contention, because of the additional developments and new evidence at the second trial.

Not only did appellant on Monday have the advice of able counsel, but Judge Smith at the second hearing observed, and appellant's attorney agreed, that on Sunday Judge Fickling had advised appellant of his rights. As noted above, the next day, Tuesday, December 16, 1958, the officers had received from Buffalo authorities a request that appellant be further interviewed concerning the Buffalo robbery, particularly as to the missing Lancaster. Sergeant Smith, who had questioned Jackson on Sunday, accompanied by Detective Allen, went to the jail on Tuesday, December 16, 1958, at 12:55 P.M. Jail procedure required the officers to fill out a form to make a matter of record the name of the person to be interviewed and the purpose. The form was then to be presented to the prisoner who was free to consent or to decline to be interviewed. The form used in this case reads:

Mr. Smithson: This is District of Columbia Jail RC No. 632 Resident

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Supervision, Jail Division, request.

'I hereby request to interview the following: Name of Inmate: Lester Lorenzo Jackson. DCDC No. 130206. Location: CB. 2. Purpose: Investigation. Agent or Representative of MPD.C. I consent to this interview.' This is checked. Signed, 'Lester Jackson. Time in-- 12:55. Time out: 2:29 p.m. Officer in Charge, December 16, 1958, Weldon B. Drake, Detective Douglas Smith, Robbery Squad, Detective Donald J. Allen, Robbery Squad.'

After appellant had so consented in writing, he was brought to the jailer's office. A jail official, the two officers and Jackson thus were present. Detective Smith told Jackson that Buffalo police wanted information about the missing Lancaster. Jackson thereupon denied participation in the Buffalo crime. The officer asked Jackson how he could on the prior occasion have supplied details as to the Buffalo affair.

We quote directly from Sergeant Smith's testimony:

He told me that he heard about the New York job, that it was common gossip out in Northeast.

I asked Jackson to tell me what he had heard in Northeast about the Tractenburg murder case.

He replied he had heard nothing. I asked him then to explain, if he could, how something that happened all the way up in New York could be common gossip in Northeast, Washington, D.C., and that a murder that had happened right here in Washington, D.C., that had received considerable newspaper publicity he could not hear anything at all about that. Jackson gave me no reply to that.

I asked Jackson if the statement that he had given me in regard to the Marchegiani case was untrue, also, and he told me no, that that statement was true. I had that statement with me and I read that statement to Jackson in its entirety. I asked him if it was a true statement and he said yes it was.

I asked him if the initials on the bottom of the first page, if they were his initials, 'L.J.,' and he told me that they were.

Also on that first page there was a correction made wherein I had typed the statement made, I used the word 'gene,' and in reading the same to Jackson he stated that he had said 'Gene' but the name Raleigh should go in that place. I asked him if those corrections were made at his direction, and he said they were.

I asked him if the signature, Lester L. Jackson, on the second page was his signature, and he said that that...

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