Hutcherson v. United States

• Citation: 351 F.2d 748,122 US App. DC 51
• Decision Date: 11 May 1965
• Docket Number: No. 18747.,18747.
• Parties: Maceo HUTCHERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

122 US App. DC 51, 351 F.2d 748 (1965)

Maceo HUTCHERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 18747.

United States Court of Appeals District of Columbia Circuit.

Argued November 30, 1964.

Decided May 11, 1965.

Concurring Opinion June 16, 1965.

Mr. John A. Shorter, Jr., Washington, D. C., for appellant.

Mr. Jerome Nelson, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and FAHY and WASHINGTON, Circuit Judges.

FAHY, Circuit Judge:

Appellant was indicted for soliciting and accepting a bribe at a time when he was an officer of the Metropolitan Police Department. The count charging solicitation rests upon 18 U.S.C. § 201 (Supp. V, 1959-63), the count charging acceptance upon 22 D.C.Code § 704. Appellant was sentenced to one to three years imprisonment, but the court committed him for only six months, suspended execution of the remainder of the sentence and placed him on probation for three years.

He contends that a detailed written confession used in evidence was obtained in violation of Rule 5(a), Fed. R.Crim.P., and should have been excluded under Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. I do not agree, for the confession was made prior to arrest. Neither Rule 5(a) nor Mallory applies. The circumstances are that when appellant's superiors in the Police Department became concerned that he may have engaged in the conduct which subsequently led to the indictment he was ordered to come to Police Headquarters in the Municipal Building for questioning. He was escorted there by another officer. During the questioning he was under restraint to the extent that he was not free to go his own way without consequence to his status as a policeman; that is, the testimony indicates that had he declined to remain and assist in the investigation he probably would have been suspended then and there. When the investigation at headquarters was concluded and the confession placed in writing and signed, appellant resigned from the police force and actually left the building without being arrested.¹ He was not indicted on the criminal charges until January 10, 1964, about a month after the investigatory session above described. The conduct of appellant's superior officers in pursuing inquiries about his possible improprieties in the course of his duties as a member of the Police Department fell short of an arrest. See Scarbeck v. United States, 115 U.S.App.D.C. 135, 317 F.2d 546, cert. denied, 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077, rehearing denied, 375 U.S. 874, 84 S.Ct. 856, 10 L.Ed.2d 1077; Seals v. United States, is not to the contrary, 117 U.S.App.D.C. 79, 82, 325 F.2d 1006, 1009, note 6, cert. denied 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982.

I consider now the contention that the confession should have been excluded because made when appellant was without counsel or the advice of counsel. As the law on this subject has evolved thus far in the decisions of the Supreme Court the answer must turn in each case upon its facts. It would not be wise, even if it were possible, to formulate now a standard for uniform application to all cases. But it is clear that the lack of counsel does not in and of itself preclude the use of self-incriminating evidence obtained during such lack. We may not here decide the question in isolation from the facts bearing upon the individual personality involved. These and all surrounding circumstances existing when the deprivation is claimed to have occurred must be considered.

There had been no indictment here as in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. No criminal charge was pending against appellant. He had not been arrested. While it is true the investigation was focused upon him, its purpose appears to have been principally to obtain his resignation rather than to lead to a criminal charge. And among other significant differences between this case and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the appellant here, unlike Escobedo, was a mature police officer being investigated by his superiors.

It is also true that the admission in evidence of a confession made before trial is likely to insure a verdict of guilty on the basis of such extra-judicial statement, whereas guilt is a matter to be determined at a public judicial proceeding with the assistance of counsel, unless the right to counsel is waived. See Massiah v. United States, supra, at 377 U.S. 204, 84 S.Ct. 1199; Escobedo v. Illinois, supra at 487-488, 84 S.Ct. 1758. For this reason a confession made and repudiated before trial is suspect. Yet the law does not preclude its use if voluntary, unless obtained as the result of a violation of some evidentiary rule or constitutional right. The courts must determine in each case whether such a rule or right has been violated. Appellant's confession was not the result of a violation of the Mallory rule; and his constitutional right to enjoy the assistance of counsel had not been denied when he made the confession.

He contends that in any event the confession was involuntary and should have been excluded on that ground. From the transcript of the pre-trial hearing on the admissibility of the confession it appears that the officer conducting the inquiry which led to the confession read to appellant 1 D.C.Code § 319. It provides that an officer or employee of the District of Columbia who refuses to testify to matters relating to his office or employment in any proceeding wherein he is a defendant or called as a witness on the ground that his answer may tend to incriminate him "shall forfeit his office or employment" and the benefits arising therefrom. The Government concedes that this provision had no application to the investigation being conducted. Also read to appellant was 4 D.C.Code § 175 which makes it a crime for a police officer to compromise a felony or any other unlawful act by "failing to give known facts or reasonable causes of suspicion, or withholding any information * * * from the proper judicial authorities * * *." Reading these statutes to appellant undoubtedly put pressure upon him. Were he not a mature and knowledgeable person who had been a police officer for five years, no doubt we would hold as matter of law that the confession was involuntary. But on the whole record, including appellant's age, experience and position, we think the issue of voluntariness was a factual one which, had it been decided in the proper manner, would not necessarily have resulted in its exclusion as evidence. The decision was reached, however, in a manner which was constitutionally defective as now explained.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 953, the Court, reasserting the position adopted in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, referred to the defendant's constitutional right at some stage in the proceedings to object to the use of a confession and to have a fair hearing and a reliable determination on the issue of voluntariness, uninfluenced by the truth or falsity of the confession. The case arose in the state courts of New York where the issue of voluntariness had been submitted to the jury. The Supreme Court said:

The obvious and serious danger is that the jury disregarded or disbelieved Jackson\'s (the defendant\'s) testimony pertaining to the confession because it believed he had done precisely what he was charged with doing.

Jackson v. Denno, supra, 378 U.S. at 383, 84 S.Ct. 1774, 1784. Departing from its earlier decision in Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, the Court approved Mr. Justice Frankfurter's dissenting language in that case:

The determination must not be influenced by an irrelevant feeling of certitude that the accused is guilty of the crime to which he confessed.

378 U.S. at 384, 84 S.Ct. 1774, 1785. Referring to its decision in Rogers v. Richmond, supra, the Court continued:

the reliability of a confession has nothing to do with its voluntariness — proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant\'s will has been overborne.

378 U.S. at 384-385, 84 S.Ct. 1774, 1785.

The reason the Court has disapproved this line of inquiry as a denial of due process of law is that in determining the admissibility of a confession inquiry into its truth distorts the issue of voluntariness. As stated in Jackson v. Denno:

Under the New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness.

378 U.S. at 386, 84 S.Ct. 1774, 1786. The Court also explains the matter as follows:

It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the "strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will," Blackburn v. State of Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, and because of "the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202, 3 L.Ed.2d 1265.

378 U.S. at 385-386, 84 S.Ct. at 1785.

In our case the trial court, in admitting the confession against the claim of its involuntariness, was...