Davis v. Burke

• Decision Date: 02 April 1969
• Docket Number: No. 16728.,16728.
• Citation: 408 F.2d 779
• Parties: McKenzie DAVIS, Petitioner-Appellant, v. John C. BURKE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

408 F.2d 779 (1969)

McKenzie DAVIS, Petitioner-Appellant, v. John C. BURKE, Warden, Respondent-Appellee.

No. 16728.

United States Court of Appeals Seventh Circuit.

March 7, 1969.

Rehearing Denied April 2, 1969.

Thomas W. O'Brien, Milwaukee, Wis., for petitioner-appellant; Brady, Tyrrell, Cotter & Cutler, Milwaukee, Wis., of counsel.

Bronson C. LaFollette, Atty. Gen., William A. Platz, Sverre O. Tinglum, Madison, Wis., for respondent-appellee.

Before CASTLE, Chief Judge, KNOCH, Senior Circuit Judge, and KERNER, Circuit Judge.

KNOCH, Senior Circuit Judge.

The petitioner-appellant, McKenzie Davis, has appealed to this Court from denial of his petition filed in forma pauperis in the United States District Court seeking writ of habeas corpus, naming as respondent John C. Burke, Warden of the Wisconsin State Prison, respondent-appellee in this appeal.

The petitioner was convicted in June 1965 in the Municipal Court for Milwaukee County, Wisconsin, on a charge of first degree murder and was sentenced to life imprisonment. The conviction was affirmed by the Supreme Court of Wisconsin, Davis v. State, 1967, 33 Wis.2d 682, 148 N.W.2d 53.

Although a warrant for his arrest had been issued in January 1947 in Milwaukee County, the petitioner was not apprehended until February 1964 in Pittsburgh, Pennsylvania. The petitioner had been placed in custody there under circumstances having no relation to the Milwaukee charge. After release on bail he was again placed in custody on receipt of a detainer from Milwaukee County. The petitioner waived extradition and Milwaukee Police Department Detective Rudolph Schneider came to escort him back to Milwaukee.

Three statements tending to incriminate the petitioner were obtained from him. After a hearing by the Trial Judge to determine the admissibility of these several statements all three were admitted into evidence at petitioner's trial.

The parties to this appeal are both of the opinion that a violation of the petitioner's constitutional rights rendering his first statement inadmissible would have the same effect on the two subsequent statements for want of a sufficiently substantial change in time and place to counteract the psychological effect of having "let the cat out of the bag." We do not here decide that issue, but we have viewed with great care the circumstances of the initial statement.

As the respondent notes, there is no claim of physical abuse, threat, illness, hunger, lack of sleep or mental deficiency, harassment, lengthy interrogation or subterfuge such as characterizes many of the cases dealing with admissibility of statements.

The first statement was made in public while the petitioner and Detective Schneider were on the airplane en route to Milwaukee. Deputy District Attorney Aladin A. DeBrozzo testified that the petitioner told him of having conferred with his own counsel in Pennsylvania who advised the petitioner to go to Milwaukee and to tell the truth. The Trial Judge specifically found that petitioner had been so advised by his local counsel before he embarked on the trip to Milwaukee. The petitioner would have us ignore this finding in connection with the first statement because the advice, although given prior to the first statement, was disclosed by petitioner in the course of his third statement. We cannot agree with that reasoning. Regardless of the time of its disclosure to the authorities, the fact that petitioner had been so advised was highly pertinent to any statement he made after receiving that advice.

Detective Schneider testified that the petitioner himself opened the subject during the trip by asking: "Can you tell me what is going to happen to me?" The witness testified further that:

I said, "Before we go into that, I want to tell you that I am interested to know what actually did happen, but you don\'t have to tell me anything, and any statement that you might make to me could be held for or against you in any criminal trial." I informed him that I had a murder warrant, charging him with first degree murder.

I told him that in my opinion the best way would be to tell the truth; and I impressed upon him that if he didn\'t care to tell me anything he didn\'t have to. And I informed him that we did have witnesses to the act of murder, and if he didn\'t care to tell me anything he could wait and discuss things with an attorney that might be appointed for him by the court, if he didn\'t have money to hire his own attorney.

I then proceeded to talk to the defendant with respect to this case.

I am quite sure that I went into that phase of his rights concerning counsel, because I tried to cover his constitutional rights in every manner that I could possibly think of, and I know he did have counsel in Pittsburgh, and I asked his attorney in Pittsburgh if the defendant had been advised of his constitutional rights.

This cause arose prior to Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which is not here applicable, Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

The petitioner lays great stress on Detective Schneider's statement on examination by the Trial Judge:

I don\'t recall if I informed him of his right to have counsel before he made any statements to me, because he did have counsel.

to show that the petitioner was not advised of his right to have counsel. However, the witness went on to say:

I did testify in my direct testimony to the general effect that in connection with my telling him that he didn\'t have to say anything, if he didn\'t want to say anything he could wait and discuss it with counsel, who would be appointed if he didn\'t have money himself. I told him that before I asked him any questions about the charge.

On re-cross examination, Detective Schneider explained further:

With respect to any statements or comments on my part with respect to the appointment of counsel to represent the defendant. I was making reference to appointment made by this Court or any other Court in the County, once he was brought before a magistrate or before a judge, once formal proceedings had begun. I was referring to any attorney that the court would appoint for him, provided he did not have funds to have one of his own — to hire his own attorney.

The petitioner himself testified that Detective Schneider made no reference at all to petitioner's right to have an attorney before he made any statements.

The Trial Judge who saw and heard the witnesses found that petitioner knew and had been advised of his right to counsel throughout the times of his interrogations and the statements he made.

The petitioner contends that statements obtained from him after his arrest pursuant to a criminal warrant by police officers who knew he had retained counsel, in the absence of that counsel when it was impossible to consult him at the time, are inadmissible in evidence. Petitioner would distinguish the cases on which respondent relies Jackson v. United States, 1964, 119 U.S.App.D.C. 100, 337 F.2d 136, 139, cert. den. 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822; United States v. Childress, 7 Cir., 1965, 347 F.2d 448, cert. den. 384 U.S. 1012, 86 S.Ct. 1936, 16 L.Ed.2d 1030 as dealing only with defendants who had not already retained counsel. We are not sure whether that distinction is valid here as there was evidently some question as to whether the attorney who advised the petitioner in Pennsylvania would come to represent him in Wisconsin. We cannot adopt any general rule that voluntary statements freely given by an accused must be suppressed merely because he has retained counsel, when he voluntarily elects to speak in the absence of that counsel.

We have studied the decisions to which petitioner has invited our attention but find them all distinguished on one or another factual basis. For example, the petitioner made no request for counsel which was deliberately denied as in Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Spano v. People of State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. He was not duped as in Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. He was not denied counsel at trial as in Carnley v. Cockran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. In Lee v. United States, 5 Cir., 1963, 322 F.2d 770, the Court in reversing relied in part on its supervisory power over the administration of federal criminal justice under the McNabb-Mallory doctrine. McNabb v. United States, 1943, 318 U.S. 332, 63 S. Ct. 608, 87 L.Ed. 819; Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Lee was in his prison cell fifteen days after arrest on a warrant issued pursuant to indictment. Two special agents of the Bureau of Narcotics went to his cell to interrogate him and later testified to his "admissions." There is no mention in the opinion of any warnings to Lee respecting his right to remain silent or to consult with counsel.

As respondent notes, the same Circuit in the following year, Lyles v. Beto, 5 Cir., 1964, 329 F.2d 332, discussed Lee, observing that no warnings were given to Lee and then declined to reverse denial of writ of habeas corpus in the case of an indicted accused in state custody who was asked if he wished to make a statement. He said he did, whereupon he was removed from jail to an office in a police station where he was told he need not make a statement and that it could be used against him. There is no indication he was told of his right to counsel. Counsel was not appointed for him until later.^*

The petitioner here had been advised by his counsel to tell the truth. He and not Detective Schneider opened the conversation concerning his case while aboard the airplane. From the evidence, the Trial Judge was amply justified in finding not only that there was a complete absence of any coercion but that the petitioner was adequately warned that he need not speak and that he...