Bosley v. United States

• Decision Date: 09 April 1970
• Docket Number: No. 21513.,21513.
• Citation: 426 F.2d 1257
• Parties: David E. BOSLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

426 F.2d 1257 (1970)

David E. BOSLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 21513.

United States Court of Appeals, District of Columbia Circuit.

Argued September 30, 1969.

Decided April 9, 1970.

Petition for Rehearing Denied May 8, 1970.

Mr. R. Timothy Hanlon, with whom Mr. Murdaugh Stuart Madden, Washington, D. C., (both appointed by this court) was on the brief, for appellant.

Mr. Donald T. Bucklin, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., Roger E. Zuckerman and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee. Messrs. David G. Bress, U. S. Atty., at the time the record was filed, and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

Appellant was charged in a three count indictment with housebreaking (D.C. CODE § 22-1801), rape (D.C. CODE § 22-2801), and sodomy (D.C. CODE § 22-3502). He was found guilty by a jury of housebreaking and sodomy as charged and of the lesser included offense of assault with intent to commit rape. He was sentenced to four to twelve years for housebreaking, four to twelve years for assault with intent to commit rape, and three to nine years for sodomy, the sentences for the assault with intent to commit rape and sodomy to run concurrently but consecutively to the sentence for housebreaking.

The Government's evidence may be briefly summarized. The complaining witness, a young lady, testified that she resided by herself in an apartment on Connecticut Avenue, N.W. in Washington, D. C. She testified that on the night of March 16, 1966, she went to bed around 11:30 P.M., having locked both the door and window to her apartment. She testified that she was awakened later that night by a man standing over her bed. Her testimony that Bosley entered her apartment without her consent is corroborated by a broken window glass in her apartment opposite the fire escape. Both complainant and a girl friend testified this was not broken earlier in the evening. Thus the fact that the window was broken in a manner to permit unlatching the lock from the outside is corroborative of the Government's contention that Bosley had gained admission to the apartment in this manner. Also corroborative of an outside entrance by Bosley into the apartment is complainant's testimony that he was wearing gloves when she first noticed him standing by her bedside. Bosley admitted he had gloves with him at the time.

The complaining witness recognized the intruder as appellant, whom she had met on two previous occasions,¹ and who lived in the apartment above her. She screamed and was told by appellant that he would kill her if she continued to scream. She testified that appellant then raped her and forced her to engage in oral sodomy. She testified that a cycle of rape and sodomy continued throughout the night. Her description of the rape and sodomy can only be described as bestial. She further testified that appellant left her apartment by way of the fire escape the next morning, and she then promptly went to a girl friend's apartment and called the police.

A detective of the Metropolitan Police arrived at her girl friend's apartment in answer to her call, and together they proceeded to her apartment. Shortly thereafter, another detective arrived at complainant's apartment and the two officers then went upstairs to appellant's apartment. As testified to by the detective:

"We knocked on the door. The door was a little bit ajar. We knocked on the door. No answer. We could look through and see someone laying on the couch. So we just pushed the door open and walked in."

The officers then shook the appellant awake,² placed him under arrest, and took him to the police station. Here certain items of appellant's clothing were seized and a sample of his pubic hair was taken.³ Apparently no evidence was taken from the appellant's apartment.

Appellant defended on the claim of consent. He testified that he had twice met the complaining witness in or about their apartment building,⁴ that preceding the early morning hours of March 17th he had been to a bar and, upon returning to his apartment, had felt lonely. The girl in whose apartment he was staying was out of the city. He further testified that he went downstairs to the apartment of the complainant, knocked on the door, was admitted and that after some conversation, he made advances which were accepted by her, after which he fell asleep, that when he awoke the next morning, complainant was upset about the possibility of pregnancy and about her fiance learning of the episode; that he was feeling poorly and could offer her little sympathy, so he left her apartment by the window and returned to the upstairs apartment where he was staying by way of the fire escape. He stated he took this route because he had left the keys to his apartment in his apartment. When he found there was no food in his apartment, he went to a nearby store and picked up some groceries, then returned and fell asleep on the couch, and the next thing he remembered was being awakened by the police.

I

The appellant first argues that the trial court erred in admitting, over objection, a certain statement allegedly made by him while in police custody and before he had been advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The statement in question was allegedly made by appellant in his apartment after the police had entered and shaken him awake. The detective was allowed to testify that after they had awakened him they first informed him that the girl downstairs had charged him with rape and appellant stated that he had not been in the apartment of the complaining witness but rather had been in a tavern until 2:00 A.M. at which time he had come home and gone to bed. The appellant denied making this statement; rather he testified as follows:

"As far as I can recall, when they came in, he said the girl downstairs * * * complained I had broken into her apartment and raped her.

"The only thing I can recall telling him was I didn\'t know what he was talking about, that I did not break in and I had not raped anybody."

Appellant was next arrested and taken to the police station.

The Government first argues that the trial court properly admitted the detective's testimony as impeachment evidence; the defense argues that the statement was used to discredit appellant's consent defense. In any event, we need not dwell long on this point since Miranda, if violated, under our decisions would prohibit the introduction of the statement even if it were used only for impeachment purposes. Miranda v. Arizona, supra, 384 U.S. at 477, 86 S.Ct. 1602; see also Proctor v. United States, 131 U.S.App.D.C. 241, 404 F.2d 819 (1968); Blair and Suggs v. United States, 130 U.S.App.D.C. 322, 401 F.2d 387 (1968).

The Government next argues that appellant's statement was voluntary and as such comes within the "volunteered statement" exception to Miranda. On this point Miranda states:

"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 86 S.Ct. at 1612.

We note that the Court drew no distinction between voluntary and involuntary statements, and we may assume that Miranda applies to all statements that come within its purview, whether volunteered or not.

However, the Court also made it clear that not all statements come within the purview of its rule. We quote (384 U.S. at 478, 86 S.Ct. at 1630):

"In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." (Emphasis added.)

The emphasized portion of the quote shows that the question to be asked is not solely whether the statement was voluntary, but rather in what circumstances was the voluntary statement made.⁵ The rest of the quote sheds light on this question. It would indeed be a harsh rule with respect to a volunteered statement made by one who walked into the police station in order to confess, or who volunteered his confession over the telephone, to prohibit its admission in evidence because the volunteered statement was offered before the police could give the required warning. In these situations, there would be no opportunity for overreaching or other abusive practices on the part of the police and consequently one of the main purposes of the Miranda decision — the deterrence of such police practices — would not be involved. Exclusion in such situations would serve no useful purpose and the Court wisely limited its rule to those statements "stemming from custodial interrogation."⁶

Turning to the case at bar, we note that appellant's statement whatever its exact content⁷ was a spontaneous denial of guilt which he volunteered when the police informed him of the charges levelled against him. We consider the reasoning of Miranda is applicable here which allows the admission of a voluntary statement that is not the result...