495 F.2d 943 (D.C. Cir. 1974), 71-1465, United States v. Bernett

Docket Nº:71-1465.
Citation:495 F.2d 943
Party Name:UNITED STATES of America v. James BERNETT, also known as James Barnett, Appellant.
Case Date:January 10, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 943

495 F.2d 943 (D.C. Cir. 1974)



James BERNETT, also known as James Barnett, Appellant.

No. 71-1465.

United States Court of Appeals, District of Columbia Circuit.

January 10, 1974

Argued June 15, 1972.

James M. Kefauver, Washington, D.C. (appointed by this Court) for appellant.

James F. Flanagan, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry, and John Ellsworth Stein, Asst. U.S. Attys., at the time the brief was filed, were on the brief, for appellee. Thomas A. Flannery, U.S. Atty. at the time the record was filed, also entered an appearance for appellee.


Before ROBINSON and WILKEY, Circuit Judges, and JAMESON, [*] Senior United States District Judge for the District of Montana.

Judge Robinson files an opinion in Parts I, II, IV and V of which Judge Wilkey and Judge Jameson concur. Judge Wilkey files an opinion in which Judge Jameson concurs, Judge Robinson dissenting for the reasons stated in Part III of his opinion. Thus Parts I, II, IV and V of Judge Robinson's opinion and Judge Wilkey's opinion together constitute the opinion of the court. The judgment of conviction appealed from is


On Appellant's Suggestion for Rehearing En Banc

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.


Appellant has filed a suggestion for rehearing en banc. On consideration thereof, it is

Ordered by the Court en banc that the suggestion for rehearing en banc is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure),

Statement of Circuit Judge LEVENTHAL, as to why he has voted to deny rehearing en banc. Chief Judge BAZELON and Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III would grant rehearing en banc, limited to the voluntariness issue discussed in Part III of Judge ROBINSON'S opinion in this case.


1. Although I am voting to deny rehearing en banc, I have doubts concerning that part of Judge Wilkey's opinion for the panel which states that a constitutional challenge against receipt in evidence of an admission to the police for lack of voluntariness is conclusively

Page 944

doomed where, as here, the setting was non-custodial and the officer's inquiry was not coercive.

Here there was no misconduct whatever on the part of the police, but the constitutional challenge does not necessarily require this. The verbal formulae differ somewhat from case to case, but the precedents converge in rejecting the notion that minimum fairness is satisfied, and that is the underpinning of due process, when a conviction is based upon the receipt in evidence of an admission made to the police under circumstances when the defendant lacked any significant measure of free will. See Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960): 'The evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane.' 361 U.S. at 207, 80 S.Ct. at 280. Would Chief Justice Warren's premise of outrage be removed if the hapless incompetent confessed to the police in a non-custodial setting or in answer to a generalized question? Later, the Court expressly said it was 'not significant' that questions by the police may have been asked by persons unfamiliar with hyoscine's properties as a 'truth serum.' Townsend v. Sain, 372 U.S. 293, 307-309, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In Pea v. United States, 130 U.S.App.D.C. 66, 71, 397 F.2d 627, 632 (1968) we said: 'It must be shown that in fact the confessor had a free will and intellect whether or not the detective had any reason to doubt its presence or suspect its absence.'

As to drunkenness as a condition that may negative voluntariness, there is a difference in degree that is significant (see point 3), but not a difference in kind, 1 as appears from Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968), the case of 'a drunken stupor approaching mania.' (p. 380). And the ruling in Unsworth's case was a holding, not dictum. 2

2. Judge Wilkey soundly points out the facts of the decided cases generally involved persons in some kind of custody or coercive-type police questioning. 3 Absence of custody (and of coercive-type questioning) is certainly relevant on the issue of voluntariness, indeed highly material, perhaps 'well nigh conclusive.' But is it absolutely conclusive?

Suppose a police officer puts a question of the kind put to a citizen generally in an investigation (see note 2) as distinguished from a focused suspect? Is his position completely irrelevant in causing people to respond? There may be a responsibility of government to

Page 945

avoid using the words of someone who is hapless- including in the term government not only the police (supra, note 1), but also the prosecutor and the judge. The Supreme Court has consistently warned us to avoid looking for absolutes in determinations of voluntariness, and has consistently noted that the issue depends on an assessment of 'the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.' Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).

It is one thing for a criminal to blunder by leaving behind a weapon or fingerprint. But as pointed out in Pea, a testimonial statement must be distinguished from inanimate evidence for it is presented in the case as 'the unique evidentiary contribution of 'an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. " 4 For the police to receive, the prosecutor to offer, and the judge to receive, such testimony from a person without free will raises more questions than merely pouncing on a criminal's blunder.

3. However, this case on its facts is simply not a suitable vehicle for exploration of these issues. As Judge Wilkey's opinion points out, in concluding that in this case the trial court did not abuse his discretion, 'it seems unlikely that Bernett could be held fatally incompetent when he could still speak intelligibly and give verified detail.' (at 971). In saying that exclusion is not required by concepts of fundamental fairness the panel noted there was 'no indication that Bernett's statement was unreliable or that his condition rendered it so.'

Even my reservations as to a constitutional claim assume some kind of government involvement at the time of the statement (though not necessarily coercive questioning). Whatever limitations are placed by the Constitution they are at lowest ebb in the case of a spontaneous exclamation, for example to a crowd that happened to include a detective, or even a policeman, unbeknownst to the declarant. This is not that case, but it is close; the police only asked, What's your name?

While the trial judge's approach seems to have been focused on the presence or absence of custody because of the Miranda portion of the challenge of defense counsel, his failure to focus expressly on the voluntariness issue apparently reflects a view that the facts of this case, taking the limited condition of drunkenness together with the absence of custodial restraint, did not raise a substantial question of voluntariness. While 'unmistakable clarity' is contemplated by Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), that was in a setting of disputed trial testimony, and even so the Court refrained from requiring formal findings of fact.

In the case of a condition as widespread as drunkenness, there is room for a high threshold. Many people who are very drunk indeed retain sufficient voluntariness for basic volitional capacity, 5 even though they have suffered some impairment, and it does not shock the conscience to repeat what they say any more than to convict them for crimes requiring only 'general intent, ' a commonplace of our legal system.

I take the present case as one where the court is affirming a ruling by the trial judge that, on the particular facts, including the defendant's condition, the innocuous police question and absence of custody, there was no substantial doubt as to voluntariness.

Page 946


This appeal is taken by James Bernett from his conviction of manslaughter 1 following a two-day trial. It raises two claims of error stemming from the District Court's denial of a motion to suppress, on grounds of involuntariness, an inculpatory oral admission which Bernett made to the police immediately prior to his arrest. The first is that the court's consideration of the voluntariness issue did not adequately safeguard Bernett's due process rights. The second is that even if the admission were voluntary, the failure of the court to charge the jury concerning the weight that might be given to it amounted to reversible error.

As to Bernett's first contention, my colleagues conclude that the admission was made in a noncustodial setting and was, for that reason, voluntary. That position is set forth in Judge Wilkey's opinion and is, of course, this court's decision on that phase of the appeal. My own examination of the record compels me to conclude that in evaluating...

To continue reading