Fuller v. United States, 19532.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation132 US App. DC 264,407 F.2d 1199
Docket NumberNo. 19532.,19532.
PartiesWilliam H. FULLER, Appellant, v. UNITED STATES of America, Appellee.
Decision Date20 November 1967




Messrs. Ezekiel G. Stoddard, and A. Alvis Layne, Washington, D. C. (both appointed by this Court), with whom Messrs. Walter T. Evans, and James Robertson, Washington, D. C., were on the brief, for appellant.

Mr. Richard L. Braun, Attorney, Department of Justice, with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and David Epstein, Asst. U. S. Attys., were on the brief, for appellee. Charles A. Mays and James A. Strazzella, Asst. U. S. Attys., also entered appearance for appellee.

Before FAHY,* BURGER and LEVENTHAL, Circuit Judges.

On Rehearing En Banc September 26, 1968.

Certiorari Denied March 3, 1969. See 89 S.Ct. 999.

LEVENTHAL, Circuit Judge:

On a three-count indictment charging first degree felony-murder, first degree premeditated murder, and rape, appellant was found guilty as charged on counts one and three and convicted of manslaughter as a lesser included offense of the second count. A motion for a judgment of acquittal notwithstanding the verdict on the rape count was denied. United States v. Fuller, 243 F.Supp. 203 (D.D.C.1965). Concurrent with a life sentence for the felony-murder, he has been sentenced to 5-to-15 and 10-to-30 years respectively for manslaughter and rape. On this appeal he challenges the admission into evidence of two incriminatory oral statements and the search for and seizure of some of his wearing apparel, introduced at trial.


Some time Sunday morning, August 16, 1964, an assailant accosted a 57-year old Negro woman as she walked along a Washington street, dragged her into an alley behind some stores, and while assaulting her sexually, caused her death by a blow on the head. The body was found the next day lying in a stairwell at the rear of a house. The two police officers investigating the crime, both detectives, found several items strewn about the scene of the crime and obtained other items picked up in the vicinity by others prior to the discovery of the body. One of these items was a small, red address book which a storekeeper found in a water drain behind his shop shortly after he opened for business Monday. On the first page of this book appeared the name and address of William H. Fuller, the appellant. After interviewing persons in the neighborhood in a vain search for eye-witnesses, the two officers drove to the address indicated in the book, asked for appellant, and learned he was at work at the Washington Suburban Sanitary Commission in nearby Maryland. They were taken to his place of employment by a Montgomery County officer, in an unmarked police car. They had the supervisor locate appellant, and identified themselves to appellant. By this time it was about 4:00 p. m. on August 17, the day after the homicide.

At this point, the facts are contested. But two separate hearings were held before two different District Judges who had and evidently utilized the opportunity to observe demeanor and evaluate relative credibility. The testimony at both hearings was substantially identical, and both judges reached similar conclusions. The facts, as found by those judges,1 are these:

The officers told appellant that they wanted to speak with him about an incident in Washington, that he did not have to talk to them, but that if he chose to talk to them the interview could be held either on the spot or at a local police station. It was quitting time and the premises were crowded and noisy, with garbage trucks returning to their garages and men leaving for the day. Appellant said he had no objection to accompanying the three officers to the Montgomery County police station. This was about 4:05 p. m. Appellant testified that he considered himself under arrest, though he conceded he was not then told he was under arrest.

On arrival at the Silver Spring police station at about 4:15, the Metropolitan police officers and appellant were given a small, unused office in the back of the station for their talk. He was told about the subject of the investigation and discussed his activities over the weekend. When he was asked about the crime, he said he didn't know anything about it. The officers showed him the address book, and appellant admitted it was his. Asked if he could explain how it got to the scene of the crime, he said he had lost it. Shortly thereafter appellant asked what would happen if he told them about it. He was told that if it concerned the crime, he would be placed under arrest and whatever he said might be used against him. He asked if his mother would have to know and was told she would find out if he admitted committing the crime. Appellant then said that he "grabbed the woman." This statement came shortly after the interview began, about 10 minutes according to the officers, about 15 minutes according to appellant. The officers then announced appellant was under arrest, advised him that he did not have to make a statement and that any statement could be admitted in evidence against him. Appellant then related the rape and homicide in detail, in a narrative lasting fifteen or twenty minutes.

It is uncontroverted that there was no violence or even abuse directed toward appellant before this confession. The most that is even adverted to in appellant's testimony is a statement that he was tapped a couple of times, patted on the shoulder, in a non-violent way.2 Both District Judges described the conduct of the policemen involved as "exemplary." Prior to the statement appellant was told if he wished he could go down to get a drink from the soft-drink machine the group had seen in the station house. Appellant's only claim to medication was that he mentioned he had a headache, and was given two aspirin tablets.3 Appellant was not told of a right to a lawyer, and he did not ask for one. There is a suggestion that appellant sought to phone his mother, but according to testimony credited by the hearing judges, appellant rather seemed concerned about whether his mother had to know what he had done.

After the oral confession, appellant was asked to make a written statement. This he declined to do, although he signed a statement indicating that he refused to make a written confession, but conceding that everything he said orally was true. (This writing was not introduced in evidence, since appellant's motion to suppress his confessions, although denied as to the oral confessions, was granted as to this written statement on the ground appellant should have been arraigned promptly after his first oral confession.) At that point the questioning was discontinued and at the request of the District officers the Maryland police arrested appellant as a fugitive from justice, pending extradition proceedings.

Later that evening the Metropolitan police secured a search warrant from a judge of the District of Columbia Court of General Sessions authorizing the seizure of the clothes appellant told the officers he wore during the commission of the crime. The application was for the search for and seizure of "dark brown trousers, red shirt, pair of men's shorts, and reddish brown patent leather shoes," set forth in the application and warrant as "instrumentalities of a crime, i. e., 1st degree murder." The warrant specifically authorized a search of the first floor of appellant's home. As a result of this search the police secured objects for scientific analysis which culminated in expert testimony at trial revealing the presence of blood on appellant's trousers, some of which was of the victim's type, and detecting fibers recovered from the surface of the victim's clothing that matched in color and texture threads from appellant's trousers and red shirt.

The following day, August 18, the Metropolitan police obtained an arrest warrant for appellant, and at about 1:30 that afternoon he was taken before a Montgomery County, Maryland, magistrate for extradition. There he was advised of the charges pending against him in the District of Columbia and of his right to an extradition hearing. The judge informed him of his right to remain silent, but apparently the only reference to counsel meant that counsel could be obtained for purposes of an extradition proceeding. Appellant pro se waived extradition.

As appellant was being escorted from the Rockville Courthouse in the custody of a Metropolitan police detective, appellant's mother appeared, identified herself to the detective, and asked whether she might talk with her son. The detective explained that she might but that he would have to be present, and advised appellant that anything he might say to his mother might be used against him. Appellant said he wanted to talk to his mother. A room was designated in the courthouse for appellant to talk to his mother and there appellant admitted to his mother that he had killed a woman with his hands.

Again, these are the facts as testified to by the police and found by the District Judges. Appellant denied that he had been advised of his right to remain silent and testified that he asked the officer whether he would have to tell his mother what happened, whereupon the officer said he might as well because she would find out eventually anyway.

Appellant was then returned to the District of Columbia, and at about 4:35 that afternoon received a preliminary hearing before a judge of the Court of General Sessions who fully advised him concerning his privilege against self-incrimination and his right to have counsel appointed to represent him.

As a result of the determinations at the pre-trial suppression hearing and the trial hearing, the first oral confession, the admission...

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