Eisen v. Picard, 71-1217.
Decision Date | 14 December 1971 |
Docket Number | No. 71-1217.,71-1217. |
Citation | 452 F.2d 860 |
Parties | Karl G. EISEN, Petitioner, Appellant, v. Philip J. PICARD, Respondent, Appellee. |
Court | U.S. Court of Appeals — First Circuit |
Alexander Whiteside, II, Boston, Mass., for appellant.
Bernard Manning, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen. and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Division, were on brief, for appellee.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
Defendant appeals from the denial, without a hearing, of his petition for a writ of habeas corpus. He was convicted in the Superior Court of Massachusetts of murder in the first degree by extreme atrocity and cruelty.1 The jury recommended that the death penalty not be imposed. The Supreme Judicial Court affirmed the conviction. Commonwealth v. Eisen, Mass., 267 N.E.2d 229 (1971).
At trial the evidence showed that Margot Eisen, defendant's wife, died of a single axe blow to the head and that Gabrielle, his daughter, died of multiple blows to the head. Their bodies were discovered on the morning of November 4, 1966. Expert testimony placed the time of death between the evenings of November 2 and 3, or perhaps as early as the evening of November 1. Prior to the discovery of the bodies on November 4 the defendant was seen going into his house and leaving after a brief stay. On November 5 he approached two hunters in the Connecticut woods, saying At that time he appeared nauseated and was wearing a red blanket over his head. The Connecticut State Police were called and when they arrived on the scene, defendant made further incriminating statements. He seemed very distraught, nervous, sick, appeared to have vomited and defecated on his clothing and was at times incoherent. He was taken into custody and on November 7 was committed to Bridgewater State Hospital where he was subsequently found incompetent to stand trial. More than a year later he was declared competent and his trial commenced in April 1968.
At trial one Marcia Reid testified that at about 11:30 on the morning of November 4 she received a telephone call from the defendant who said, "This is Karl," and asked her to call the police. He did not sound excited or disturbed. Mrs. Reid then turned the telephone over to her husband, Kenneth, who testified over objection that the defendant told him Over similar objection a Margaret Bernardo testified that on the same morning the defendant telephoned her and said that his wife and daughter had been dead at home for two days and that he was in Canada with three of the children. He asked, "What shall I do?"
Chief Goonan of the Kingston police stated over objection that on November 5 while in custody the defendant said to him and several other policemen, 2 Somewhat similar incriminating statements made to other officers at the time of defendant's arrest were admitted without objection. Detective Sanga of the Connecticut State Police testified that on Saturday, November 5, he was called to a state forest in Connecticut. There he asked the defendant if he was Karl Eisen who was wanted by the Massachusetts police authorities, and the defendant replied, "Yes I am, I did it, I did it, I did it." Another State police officer who accompanied Detective Sanga testified to the same effect.
The defense was based on insanity. The defendant took the witness stand and stated as follows: on Wednesday, November 2, he did not eat all day; late in the evening he had two small glasses of cognac and a bottle of beer and a sip from a second bottle of beer; he did not feel well — was sick to his stomach; arrived home about 10 or 10:30 p. m.; felt miserable and went to bed. The ceiling seemed to be turning. During the night he heard somebody crying. He could not awaken his wife; she did not move. He went upstairs to his sons' room and tucked them in bed. The next thing he remembered was awakening in broad daylight, kneeling by his son Dean's bed. Then he went downstairs and saw that his wife was dead. He covered her face with a pillow, went upstairs and saw that his daughter was dead and placed a bureau in front of the door to her room. The defendant woke up his other children and drove off with them. His memory of the events between November 3 and 5 was very incomplete, and he maintained that he had no further recollection of the events of the night of November 2. Defendant's medical expert testified that he was insane on the date of the crime.
At the close of the defendant's direct testimony, his attorney moved to strike all inculpatory statements made by the defendant, oral or written. This motion was predicated on the testimony of the medical experts that the defendant was insane at the time these statements were made. The motion was denied.
In this petition two issues arise from defendant's claim of insanity: whether his in-custody statements were voluntary and whether his noncustodial inculpatory statements were competent.3 A review of the expert testimony on defendant's mental condition is a prerequisite to any consideration of these issues.
Dr. Mezer, defendant's expert, testified:
Dr. Allen, the state's medical expert, conceded that the defendant was insane and incompetent on November 7. Despite some initial reluctance to do so, he further stated that in his opinion the defendant was mentally ill and no longer rational on November 3.
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) requires a trial court to rule that statements to police officers were voluntarily made before they are submitted to the jury. The court'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). There is substantial doubt in the instant case that the trial court applied a proper test in determining the voluntariness of custodial statements to police officers. The court appears to have used the same standard for all its rulings on the admissibility of defendant's inculpatory statements.4 While it considered it relevant that there were no threats, pressure, or suggestions by police officers, the court failed to take into account that the defendant's insanity may have deprived him of his freedom of choice, the essence of his ability to make a voluntary confession. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). In ruling on the motion to strike, the court had before it substantial evidence of defendant's insanity at the time of his custodial inculpatory statements. Yet neither in its ruling on this motion5 nor in its charge to the jury6 did the court appear to recognize that insanity relates to the issue of volition as well as to the issue of competence.
Commonwealth v. Zelenski, 287 Mass. 125, 191 N.E. 355 (1934), on which both the trial and the appellate courts relied, stands for the proposition that " Commonwealth v. Eisen, supra (citation omitted). Competency, not voluntariness, was at issue in Zelenski. Thus a finding of voluntariness using a test for determining competency is not adequate because it does not take account of the possible absence of free will. In discussing whether a confession is the product of a man's free will, the court said in Pea v. United States, 130 U.S.App.D.C. 410, 397 F.2d 627, aff'd on rehearing, 397 F.2d 627 (1968) (en banc):
Id. at 634. (Emphasis added.)
Since it is clear that insanity may deprive a man of his ability to make a voluntary confession, Blackburn v. Alabama, supra, the failure of the trial court here to clearly consider whether defendant's confessions to the police officers subsequent to his arrest were the product of a rational intellect requires a reversal. In Blackburn the Court said:
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...jury. The court's 'conclusion that the confession is voluntary must appear from the record with unmistakable clarity. " Eisen v. Picard, 452 F.2d 860, 863 (1st Cir. 1971). See Amado v. Commonwealth, 349 Mass. 716, 212 N.E.2d 205 (1965).5 'We gave retroactive effect to Jackson v. Denno . . .......
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...States, 380 F.2d 305, 309-310 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967). See Eisen v. Picard, 452 F.2d 860, 863-865 (1st Cir. 1971). At the suppression hearing, the defendant offered no evidence that he was particularly susceptible to police pressure. Ther......
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...are several cases which, at first glance, appear to offer more support to the defendant's position than do those discussed above. In Eisen v. Picard13 the court did discuss the admissibility of allegedly incompetent (as opposed to coerced) non-custodial inculpatory statements. The court sai......
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