591 F.2d 833 (D.C. Cir. 1978), 77-1172, United States v. Powe

Docket Nº:77-1172.
Citation:591 F.2d 833
Party Name:UNITED STATES of America v. Kim L. POWE, a/k/a
Case Date:November 15, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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591 F.2d 833 (D.C. Cir. 1978)

UNITED STATES of America

v.

Kim L. POWE, a/k/a "Kim," Appellant.

No. 77-1172.

United States Court of Appeals, District of Columbia Circuit

November 15, 1978

Argued Sept. 30, 1977.

As Amended Nov. 22, 1978.

Rehearing Denied Jan. 19, 1979.

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Jeffrey M. Albert, Washington, D. C. (appointed by this Court), for appellant.

Jonathan Lash, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Steven R. Schaars, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Eric Sirulnik, Washington, D. C., also entered an appearance as co-counsel for appellant.

Before BAZELON, TAMM and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge BAZELON.

Dissenting opinion filed by Circuit Judge WILKEY.

BAZELON, Circuit Judge:

Appellant, Kim L. Powe, was convicted by a jury of distributing one tablet of phenmetrazine in violation of 21 U.S.C. § 841(a). She contends that reversal is required because the trial judge permitted the government to impeach her credibility by introducing evidence of admissions of guilt she made in response to offers of leniency. Although appellant did not raise this issue at trial, it is firmly established that self-incriminating statements induced by promises or offers of leniency shall be regarded as involuntary and shall not be admitted into evidence for any purpose. 1 Therefore, in the circumstances of this case we remand the record to the district court for further proceedings to determine whether appellant's alleged admissions were obtained in a manner consistent with Fifth Amendment principles.

I

On May 18, 1976, Officer Gregory Green of the Metropolitan Police Department was operating as an undercover agent in Northwest Washington, D. C. At approximately 2:15 in the afternoon, on a corner at 4th and M Streets, Green was approached by Arthur Harris, a man he believed to be a "known narcotics dealer." Transcript (Tr.) 14-15. Harris offered to sell Green some

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phenmetrazine, and when Green accepted the offer, Harris turned to a woman standing next to him and told her to hand Green a pill. Id.

Although Officer Green did not recognize the woman with Harris at the time of the alleged transaction, he allegedly saw her later when Harris was booked for his role in the offense 2 and again in the courtroom at Harris' preliminary hearing. 3 After seeing appellant in the courtroom, Green arrested her with the assistance of Detective Rosewal Yates. At that time, the appellant was advised of her Miranda Rights. 4

At trial, appellant testified in her own behalf. Although she acknowledged that Harris was her boyfriend and that she had seen him engage in narcotics transactions, appellant denied her own involvement in any transactions and specifically denied involvement in the offense charged. Tr. 58-59. On direct examination, defense counsel asked appellant whether, at the time of her arrest, she had made any statements to the police. Tr. 56. When she replied that she had, counsel asked to approach the bench. Tr. 57. The ensuing conference developed as follows:

THE COURT: Are you surprised?

(Counsel): Very surprised.

THE COURT: Do you want to withdraw the question?

(Counsel): I will withdraw the question.

Id. The trial judge knew that counsel was taken aback by appellant's response because, only moments earlier, counsel had informed the judge at the bench that her "testimony will be she made no statement at all." Tr. 56.

Although defense counsel asked no further questions of appellant concerning her statements to the police, the prosecutor returned to the subject on cross-examination. First, he asked whether she had told Detective Yates that she felt sorry for Harris because she had gotten him involved with narcotics in the first place. Tr. 63. She replied, "I don't remember making a statement like that." Id. Second, the prosecutor asked whether she had told Yates that her role in narcotics transactions was to hold the drugs for Harris while he negotiated with customers. She answered, "No." Id.

Defense counsel attempted on redirect examination to determine just what statements appellant did make to the police:

Q. Miss Powe, what did you say to the police when you talked to Detective Yates?

A. Well, they was asking me about, you know, what I had to do with narcotics and at the time I told them I was a drug user and Mr. Yates made propositions to me as far as turning over drug dealers up in that area over to him, to drop my case and Mr. Harris's case.

Tr. 64. Evidently, appellant used the plural pronoun "they" because Yates was accompanied during the interrogation by Officer Green. Tr. 79-80. It is not clear whether Green questioned appellant, or was simply present. In any event, defense counsel did not pursue the matter further during redirect.

In order to impeach appellant's testimony, the government then reopened its case and called Detective Yates, who had not testified initially. He indicated that at first appellant refused to talk at all, but began to do so after it was suggested that her cooperation might prove beneficial:

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Q. (by the prosecutor) Now, did Miss Powe at any time (after receiving Miranda Warnings) indicate to you that she didn't want to talk to you?

A. At that time, no, she did not want to talk.

Q. Now, did there come a time subsequent to that that you did talk to her?

A. Yes.

Q. Could you describe the circumstances of that conversation, sir?

A. During the conversation, asking her if she wanted to cooperate with the police on drug traffic at 4th and M Streets and during that conversation, I stated to her: You really don't want the other defendant Harris to fall for Harris (sic), get in trouble because of his activities and her statements were that: I am the one feeling sorry for him because I introduced him into drug trafficking.

Q. And at the time you were engaging in this conversation, did she indicate a willingness to talk to you, sir?

A. Yes, she did.

Q. Did your conversation include anything else, sir?

A. Well, she stated that she held the drugs while Harris did the selling.

Q. And what was the context that that particular statement was given to you in?

A. It was broken off back and forth during a conversation.

Tr. 71-72.

At the conclusion of Yates' direct testimony, the trial judge responded Sua sponte by instructing the jury that the government's evidence of appellant's admissions could be considered for purposes of impeachment only. Tr. 75-76. He indicated that the basis for this instruction was "the Harris case," Tr. 75, evidently referring to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

Finally, defense counsel sought to clarify the circumstances of the interrogation in his cross-examination of Detective Yates:

Q. Detective, you testified that originally Miss Powe stated that she did not want to talk to you?

A. That is correct.

Q. What did she say to you?

A. That was after giving her the rights. I asked her where she lived and stuff like that and mentioned where she wanted to go and what she wanted to do. At the beginning of the processing, she was quite hostile and she didn't want to speak to us about anything.

Q. How much time elapsed before she finally talked or spoke to you?

A. I would say about a half hour, hour or so, roughly a half an hour.

Q. Did you, during that half hour, did you leave her by herself?

A. No, this is during the processing.

Q. After that half hour, did you ask her again if she wanted to speak to you?

A. Yes, not just asked if she would, wanted to speak. I started talking to her about certain questions and everything else and during this time asked her if she wanted to cooperate and to assist herself in this case and help herself out.

Q. What did you mean by that?

A. Well, to cooperate with the police and help her to get other drug traffickers in the city, assist herself to work off the case if need be.

Q. Was it at this time that she made these statements to you?

A. Shortly after, yes. She started talking. I started talking and she started giving information, certain information of elements about the city and things like that.

Tr. 76-77.

II

It is by now too well-established to require extensive discussion that a conviction based, in whole or in part, upon an involuntary confession deprives the defendant of due process. 5 In order to protect this

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"jealously guarded constitutional principle," 6 the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), established a procedure to ensure that the defendant would have "a fair hearing and a reliable determination on the issue of voluntariness." 7 Not only must the trial judge determine that a confession was freely and voluntarily given before allowing a jury to hear it, but the trial judge's "conclusion that the confession is voluntary must appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967).

Ordinarily, the issue of voluntariness will be raised by the defense, either by pretrial motion to suppress 8 or by objection at trial. 9 When an objection is lodged, the hearing requirements mandated by Jackson v. Denno Are triggered, and a hearing must be held out of the presence of the jury to determine whether the confession is admissible. The question presented by this unusual case is whether, and under what circumstances, the trial judge has a responsibility Sua sponte to raise the issue of voluntariness and to hold the hearing prescribed by Jackson v. Denno.

A

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