Bailey v. United States, 17834.

• Decision Date: 06 February 1964
• Docket Number: No. 17834.,17834.
• Citation: 328 F.2d 542,117 US App. DC 241
• Parties: Joseph W. BAILEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 US App. DC 241, 328 F.2d 542 (1964)

Joseph W. BAILEY, Appellant, v. UNITED STATES of America, Appellee.

No. 17834.

United States Court of Appeals District of Columbia Circuit.

Argued December 11, 1963.

Decided February 6, 1964.

Petition for Rehearing Denied March 23, 1964.

Mr. Richard P. Williams, Washington, D. C., with whom Messrs. Franklin M. Schultz and Charles F. Moore, Washington, D. C., (all appointed by this court) were on the brief, for appellant.

Mr. Robert D. Devlin, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Robert B. Norris, Asst. U. S. Attys., were on the brief, for appellee. Mr. Harold J. Sullivan, Asst. U. S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, BASTIAN and J. SKELLY WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied March 23, 1964.

WILBUR K. MILLER, Circuit Judge.

Between 11:00 p. m. and midnight on Friday, July 27, 1962, Joseph W. Bailey shot and killed Reginald Harvey, a brother of his common law wife. On August 20, 1962, he was indicted for manslaughter and on March 5, 1963, he was found guilty by a jury. On this appeal, Bailey contends that a typed statement he gave the police was erroneously received in evidence, that his acquittal should have been directed on the ground of self-defense, and that his conviction should be reversed on the ground that he was not accorded a speedy trial.

As to the principal contention — that Bailey's typed statement should have been rejected on Mallory grounds¹ — Bailey testified that about 12:20 a. m. on Saturday, July 28, 1962, shortly after he fled from the scene of the shooting, he surrendered to a police officer whom he met on the street. He said, "I told him I had shot a fellow and I didn't know whether he was seriously hurt. I told him I was sorry about the whole thing and told him the gun was in my right pocket."

The officer arrested Bailey and took him to the 14th precinct station where he had a conversation with Detective Hack at approximately 12:50 a. m., which Hack described thus:

"A. Mr. Bailey related very briefly that he had been in an argument with the decedent, Reginald Harvey, at 610 46th Place, S. E., when Reginald Harvey came to the apartment of Miss Helena Thompson and that he had shot the decedent. He was not asked to give a statement until we had arrived at the Homicide Squad Office."

They arrived at the Homicide Office about ten minutes later, and at 1:30 a. m. the typing of a statement was begun. It was completed and signed by Bailey at about 2:00 a. m. Saturday, July 28.

At the trial, Bailey told the story of the shooting much as he had done in the typed statement. In cross-examination, Government counsel read portions of the statement to him in an effort to impeach him as to several minor points. This was proper, even if the typed statement had been unlawfully obtained; for the Supreme Court said in Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954):

"It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government\'s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 would be a perversion of the Fourth Amendment.

"Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government\'s disability to challenge his credibility."

To the same effect is Tate v. United States, 109 U.S.App.D.C. 13, 283 F.2d 377 (1960).

As he had done in his oral confession and in his typed statement, Bailey admitted from the stand that he had shot Harvey but claimed, as he had done in the typed statement, that he had acted in self-defense. The jury did not agree with him. Although he had objected on Mallory grounds to the use of the statement, Bailey's counsel suggested the entire statement be given to the jury, and said he would like to read to the jury "the parts that have not been previously read." Counsel then proceeded to ask Bailey whether he had made certain rather lengthy statements contained in the typed document. He admitted that he had, with a few minor corrections, but stated that the typed statement was incomplete in that it did not include the statement that Harvey was a bully and that he was afraid of him. He also said, inaccurately, that his claim of self-defense was omitted from the statement.

In these circumstances, the trial judge was correct in the first instance in receiving the typed statement over the Mallory objection. There was a threshold oral confession, and the typed statement was immediately prepared and signed. Appellant was informed that he need not make a statement and that he could remain silent. Moreover, Bailey's counsel read to the jury those portions of the typed statement that the prosecutor had omitted.

The appellant's argument that the Mallory rule was violated is principally based on the fact that he was not presented to a committing magistrate until Monday, July 30, although he had confessed to the shooting and given the largely exculpatory typed statement in the early morning hours of Saturday, July 28. Even if his detention during this subsequent period was unlawful, it did not retroactively make inadmissible the typed statement voluntarily given at its inception. The Supreme Court said of illegal detention subsequent to confession in the Mitchell case:²

"* * * But in any event, the illegality of Mitchell\'s detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct."

In the Mallory decision, written thirteen years after the Mitchell case, the Supreme Court said, 354 U.S. at 453, 77 S.Ct. at 1359, 1 L.Ed.2d 1479:

"* * * In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary in McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L.Ed. 819 to render inadmissible incriminating statements elicited from defendants dur- ing a period of unlawful detention." (Emphasis added.)

Some judges have construed this as an alteration of the Mitchell ruling and, in consequence, have held that a voluntary confession is inadmissible if it was followed by a period of illegal detention.

We have held to the contrary in a number of cases. Judge Burger said in Metoyer v. United States:³

"Detention after a confession plainly does not affect its admissibility. United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140. See also 43 Va.L.Rev. 915 (1957)."

Judge Fahy, speaking for a unanimous court in Perry v. United States,⁴ said

"* * * there was no unnecessary delay, prior to the statements, in taking appellant before a committing magistrate in accordance with the terms of Rule 5(a) of the F.R.Crim.P., 18 U.S.C.A. In these circumstances Mallory v. United States, supra, does not apply. On the contrary, the factual situation is essentially like that in United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, where the Supreme Court held that statements made under similar circumstances were not inadmissible. We accordingly so hold with respect to those now before us."

In Porter v. United States⁵ Mr. Justice Reed, sitting with us by designation, after referring to the Mitchell case, said:

"* * * There is no rule of law in federal courts that bars the admissibility of extra-judicial statements of prisoners to the police after arrest and before the time has expired of permissible detention between arrest and appearance before a magistrate."

In Lockley v. United States⁶ we said:

"* * * A confession given during a period of necessary delay in arraignment is not inadmissible because that period was followed by a period of unnecessary delay. * *"

Judge Edgerton, speaking for a unanimous court in a case where the timetable was largely similar to that in the present situation, said:⁷

"* * * The critical period is that between arrest and confession. `Detention after a confession plainly does not affect its admissibility. United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140.\' Metoyer v. United States, 102 U.S. App.D.C. 62, 65 n. 4, 250 F.2d 30, 33 n. 4 (1957). * * *"

The Mitchell case, relied upon in each of the foregoing decisions, has never been altered by the Supreme Court. Indeed, as recently as 1961, Mr. Justice Frankfurter, the author of the McNabb, Mitchell and Mallory opinions, said:⁸

"* * * Of course, our decision in United States v. Mitchell, 322 U. S. 65 64 S.Ct. 896, 88 L.Ed. 1140, makes clear that confessions made during the period immediately following arrest and before delay becomes unlawful are not to be excluded under the rule."

The only question in this...