Green v. United States, 20288.

• Decision Date: 29 December 1967
• Docket Number: No. 20288.,20288.
• Citation: 389 F.2d 949,128 US App. DC 408
• Parties: Lawrence W. GREEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 408, 389 F.2d 949 (1967)

Lawrence W. GREEN, Appellant, v. UNITED STATES of America, Appellee.

No. 20288.

United States Court of Appeals District of Columbia Circuit.

Argued June 21, 1967.

Decided December 29, 1967.

Messrs. Arthur G. Lambert, and Fred Warren Bennett, Washington, D. C. (both appointed by this court) for appellant.

Mr. Lee A. Freeman, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Miss Carol Garfiel, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, DANAHER, Circuit Judge, BASTIAN^*, Senior Circuit Judge, and BURGER, WRIGHT, McGOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc.

BASTIAN, Senior Circuit Judge:

This is an appeal from the District Court after a hearing on remand for an explicit determination by the trial judge as to the voluntariness of the oral confession introduced at defendant's (appellant's) trial as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). After determining that the defendant was competent to participate in the hearing, the trial judge found that beyond a reasonable doubt the confession was voluntarily given. It is from this determination that defendant appeals, (1) challenging the determination of voluntariness, (2) asserting an unnecessary delay before preliminary hearing, during which delay the oral confession was obtained, and (3) contending that this court's en banc determination on the first appeal that the facts did not obligate the trial judge sua sponte to conduct a competency hearing is now invalidated by the Supreme Court's decision in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). As we cannot accept these contentions, we affirm.

The factual background of this case is to be found in the prior opinions of this court dealing with the current indictment, Green v. United States, 122 U.S.App.D.C. 33, 351 F.2d 198 (1965), and with a previous indictment, Green v. United States, 121 U.S.App.D.C. 226, 349 F.2d 203 (1965). The case now before us began with Green's arrest on August 9, 1962, and indictment on three counts of robbery, committed after he had "eloped" from St. Elizabeths Hospital. Green had been committed to the hospital in 1961 pursuant to D.C.CODE § 24-301(d) after being found not guilty by reason of insanity on a four-count robbery charge. This earlier finding and commitment had followed a mental examination and determination, pursuant to D.C.CODE § 24-301(a), that, although he was competent to stand trial, his alleged criminal acts could have been a product of the mental disease from which he was suffering at the time of such acts.

After his indictment in the present case, appellant again was granted a ninety-day psychiatric examination at St. Elizabeths under § 24-301(a). The determination of the examination was that appellant was competent to stand trial and that, although mentally ill at the time of the alleged offenses, such acts were not the product of that illness. Appellant was tried and convicted by a jury on two counts of robbery. He was then returned to St. Elizabeths pending vacation of the commitment resulting from his 1961 trial. Upon Green's appeal from this conviction, we sua sponte ordered an en banc hearing. On that appeal, Green attacked his conviction on the ground that no sua sponte hearing was conducted by the trial judge to determine competency. We rejected this contention, based on the specific facts of this case and our earlier opinion in Whalem v. United States, 120 U.S.App. D.C. 331, 346 F.2d 812 (1965), cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed. 2d 100. The trial judge had conducted a voluntariness hearing upon appellant's motion to suppress the confession, but he dismissed the motion without making a specific finding of voluntariness. We remanded on a confession of error by the Government in light of the requirement of Jackson v. Denno, supra, decided subsequent to the trial in this case, that a specific finding regarding voluntariness must be made by the trial judge in all such voluntariness hearings. Our remand was specifically for the purpose of such a determination, with directions for affirmance of the conviction if the confession was found to have been voluntary.

On remand, an extensive seven-day voluntariness hearing was conducted, covering in detail the events preceding and subsequent to appellant's arrest and confession and the circumstances surrounding the confession, with testimony from one of the victims and two of the arresting officers, and with lengthy testimony from five psychiatrists regarding appellant's mental condition at that time. With this record as well as that of the original trial before him, the trial judge made determinations that appellant was competent to participate in the remand hearing and that the confession used against him at the trial was voluntary beyond a reasonable doubt. Regarding the circumstances of the robbery, the trial judge made findings of fact that appellant was arrested within three and one-half blocks of the scene of the crime about five minutes after its commission, and in possession of incriminating evidence. He further found that appellant was taken immediately into the police station (directly in front of which he had been arrested), then transported to the scene of the crime and identified by the victims, and returned to the police station, all within thirty to forty-five minutes. Regarding the confession, he further found as a fact that, while at the realty office and while en route back to the police station, appellant made the incriminating statements constituting the oral confession, before all of which he had been warned that he need not make any statement and that any statement made by him could be used against him. Regarding voluntariness, the trial judge found from the record that appellant's statements were calm and rational, and his answers responsive; that his demeanor was normal in every respect; and that no promises, threats, assault, brutality, artifice or trickery were used to induce any statement or admission. From the extensive psychiatric testimony, the trial judge made findings that there was no credible psychiatric testimony that the statements were involuntary,¹ and that appellant had the mental capacity to make the statements voluntarily. Whereupon, an order was entered dated June 6, 1966, finding that the confession was voluntary, and affirming the judgment of conviction pursuant to the directive of our en banc opinion.

At the trial, appellant's counsel objected to the oral confession as being involuntary due to appellant's mental condition, which contention was rejected by the trial judge. This was not challenged on appeal. Rather, as we have noted, the Government cited the lack of an explicit finding regarding voluntariness by the trial court, giving rise to the remand hearing. Appellant now contends, regarding the voluntariness of his incriminating oral statements, not only that under "traditional tests" was the trial judge's finding erroneous, but, again, that appellant's mental illness had made him incapable of "understanding the meaning and effect of his confession," drawing this language from People v. Tipton, 48 Cal.2d 389, 309 P.2d 813 (1957), cert. denied, 355 U.S. 846, 78 S. Ct. 71, 2 L.Ed.2d 55 (1958). Here, however, the record on remand fully supports the finding of voluntariness beyond a reasonable doubt made by the trial judge, such finding being completely consistent with the following tests: Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (product of an essentially free and unconstrained choice); Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (whether the defendant's will was overborne); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (that the confession was made freely, voluntarily, and without compulsion or inducement of any sort).

This is not to deny that the accused's mental condition is one of the factors bearing on this admissibility question. McAffee v. United States, 72 App.D.C. 60, 111 F.2d 199 (1940). Although neither this court nor apparently any other federal court has purported to set out or describe a standard which must be specially and additionally enunciated and met in determining voluntariness whenever mental capacity is urged as a defense, the case of Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), where mental competence was at issue, does indicate that a defendant's confession will be deprived of its voluntary nature when his mental illness is such "that the confession most probably was not the product of any meaningful act of volition." In this case, however, findings of fact were made and supported by the record which clearly indicate that appellant's will was not overborne, and which fully satisfy the prerequisites of voluntariness, including the language cited by appellant and that noted above.²

On remand appellant, for the first time, sought to introduce an issue of "unnecessary delay" prior to preliminary hearing, violative of FED.R.CRIM.P. 5(a), during which time the confession used at trial was obtained in violation of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). This contention is absent from the original trial and appeal, and clearly was not within the scope of the explicitly directive remand order of this court. Green v. United States, 122 U.S.App.D.C. at 36, 351 F.2d at 201. Furthermore, the en banc disposition of that prior appeal, which focused on the admissibility of the confession, would seem to have settled the question. Certainly, neither the majority opinion nor the dissent alludes to any such "unnecessary delay" which, had it been manifest, would have compelled immediate reversal. Consistent with the narrow scope of our remand, it would appear...