United States v. Howard, 71-2000.

• Citation: 152 US App. DC 258,470 F.2d 406
• Decision Date: 10 October 1972
• Docket Number: No. 71-2000.,71-2000.
• Parties: UNITED STATES of America v. William H. HOWARD, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

152 US App. DC 258, 470 F.2d 406 (1972)

UNITED STATES of America v. William H. HOWARD, Appellant.

No. 71-2000.

United States Court of Appeals, District of Columbia Circuit.

October 10, 1972.

Mr. Morris J. Levin, Washington, D. C. (appointed by this Court), was on the brief for appellant.

Mr. Harold H. Titus, Jr., U. S. Atty., was on the brief for appellee. Messrs. John A. Terry, Vincent R. Alto, and Ruth R. Banks, Asst. U. S. Attys., were also on the brief for appellee.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

PER CURIAM:

Appellant Howard was convicted of armed robbery and felony murder. The court adjudged a sentence on the felony murder count of twenty years to life and on the armed robbery conviction of five to twenty years. The sentence provided that the terms of imprisonment were to run concurrently with each other.

Appellant's brief states the question presented on this appeal to be:

Did the trial court err in failing to suppress the defendant\'s alleged confession where it was uncontroverted that defendant had made known his wish and intention to consult with an attorney, but the Government had, nevertheless, continued to interrogate the defendant in the absence of an attorney, and elicited a confession prior to making an attorney available to defendant?¹

The difficulty with this formulation of the issue is that the Government's evidence, both at the suppression hearing and at the trial, did controvert the claim that appellant "made known his wish to consult with an attorney."

At the suppression hearing the Government introduced testimony from police officers to the effect that after appellant was duly advised of his rights a number of times (it is admitted that he was duly advised of his rights by police officers and by the magistrate), he initially indicated he was undecided whether he should talk to the police officers or whether he should wait until he had an attorney: ". . . whether he should get an attorney there in Raleigh or wait until he came back to Washington, D. C." (H. 60, 72-73, 77-78).² Being undecided about getting a lawyer is substantially different from making a request for an attorney. The police state they replied to Howard's statement of indecision by saying it was up to appellant and they then informed him that they "had obtained statements from Keith Glover, Cooley and Cal Calhoun" (H. 61).³

At that time, he told us he wanted to tell us what he knew about it. (H. 61).⁴

The police then took down a typewritten confession which appellant read over, made corrections in the draft statement, and then initialled and signed it (H. 62-64, 70-72).

There is thus no question that the testimony of the Government did controvert appellant's claim that appellant "made known his wish and intention to consult with an attorney" by introducing testimony that he indicated he was "undecided" about an attorney and then going forward to give a voluntary statement.

We do not overlook the testimony of Howard at the pretrial suppression hearing in which he testified⁵ he asked for an attorney (H. 95). He further testified that he was told maybe the policemen could answer his questions and that if he insisted on a lawyer before he made a statement that it would probably delay the matter as much as four months (H. 96).

We also note that appellant on cross-examination freely admitted that he was duly advised of his rights and "understood them" (H. 98, 103): of his right to an attorney, that if he could not afford an attorney the police "would make sure one would be appointed for him," that he did not "have to answer any question, if he wanted to answer some question he could stop answering any time," and that "nobody mistreated" him (H. 99, 102). He also admitted that he had been promptly taken before the magistrate, that the magistrate had advised him of his rights, including his "right to an attorney" and that at that time in writing he had waived his right to any attorney (H. 99-100).

The factual situation surrounding the taking of the confession is well presented by the following extract from Howard's cross-examination:

Q You knew you had a right to a lawyer?

A Yes, I knew I had a right.

Q You knew you didn\'t have to say a word without a lawyer?

A Yes.

Q And you knew they wouldn\'t beat anything out of you, is that correct? You didn\'t fear that, did you?

A Being beaten?

Q Beat you up to get a confession out of you?

A No, I didn\'t fear that.

Q You had no worry about that at all?

A Not about being beaten.

Q But you gave a statement anyway without a lawyer?

A Yes, I did. (H. 105).

It is perfectly clear that the confession was not forced and appellant does not so contend.

As for the conflict in the testimony, that was clearly for the trial judge to adjudge and he resolved it in favor of the Government as follows:

THE COURT: Well, I am not going to suppress any of these statements. The Court is inclined to feel that the officers have proceeded with proper regard for the rights of the individuals involved. The only case that presents any problem to the Court at all is the case of Howard, and in the instance of Howard, I do not fully accept his testimony, in view of the fact that in the light of the testimony of the officers, I believe what happened is that Mr. Howard ruminated about whether or not perhaps he ought to have a lawyer, he decided to go ahead and get it over with, and give his statement. His whole performance with respect to initialing and the handling of the statement, and the manner in which the statement runs, which you can see is a freely running confession, and not a forced confession in any way, leads the Court to feel that in the absence of any oppressiveness — and I find none in this case — that he, whatever his earlier comments may have been, determined that he would get it over with and give a statement, when he learned that others who were involved with him in the offense had given statements. I do not believe that it violates any legal requirement to tell a man that other statements have been given, if in fact those statements have been given. Where that device is used when no statements have been given, I think a wholly different problem exists; but in this instance, statements had been given and the statements of the officers with respect to that are genuine. (Emphasis added, H. 110-111).

Since credibility is involved we recognize the superior position of the trial judge to determine where the truth lies. His remarks also clearly set forth the basis for his determination. It is universally recognized that his opportunity to see and hear the witnesses places him in a preferential position to weigh incourt testimony. We also note that Howard was 23 years of age at the time of the interrogation, that he had served 2 years in the United States Marine Corps, being detailed to electronics communications, and that in connection with a court-martial there he had been represented by assigned counsel (H. 100-101). Lawyers were not something new to him.

Appellant contends that the Government brief, which deals with the propriety of admitting the confession, goes beyond the suppression hearing and cites testimony at the trial which he claims is stronger in favor of the Government. He contends that the Government's reference to trial testimony to support the court's ruling is...