Grant v. Wainwright, 73-1435.

• Decision Date: 18 October 1974
• Docket Number: No. 73-1435.,73-1435.
• Citation: 496 F.2d 1043
• Parties: Daniel GRANT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 1043 (1974)

Daniel GRANT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.

No. 73-1435.

United States Court of Appeals, Fifth Circuit.

June 27, 1974.

Rehearing and Rehearing Denied October 18, 1974.

Henry H. Harnage, Miami, Fla. (Court-appointed), for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.

Rehearing and Rehearing En Banc Denied October 18, 1974.

GOLDBERG, Circuit Judge :

Shortly after ten o'clock on Saturday morning, June 24, 1961, the body of Mrs. Hyman Nudel was discovered in the back room of a Miami upholstery shop operated by Mrs. Nudel and her husband. Medical testimony established that death was caused by strangulation by hands and ligature such as a cord or wire. There were apparently no eyewitnesses to the murder, and police found no fingerprints or other physical evidence with which they could positively identify the perpetrator.

At about noon on the day of the murder petitioner Daniel Grant, who for several months had been an employee in the Nudels' shop, was picked up and taken to the police department's homicide bureau. The parties are not in complete agreement as to what happened thereafter ; however, considering "only the uncontested portions of the record : the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted," Culombe v. Connecticut, 1961, 367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037, a perhaps incomplete, but certainly unsavory, scenario emerges. Without being warned of his constitutional rights, Grant was questioned regarding his whereabouts that morning. When Grant explained that he had gone by the upholstery shop to borrow some money from Mr. Nudel, he was placed under arrest. From Saturday afternoon until Monday evening, some 53 hours, Grant was incarcerated without being taken before a magistrate. From 6:31 p. m. Monday until 2:00 a. m. Tuesday Grant was questioned intensively by relays of police officers.¹ During that seven and a half hour period Grant was left alone for only two brief intervals ; in addition, his wife was brought in to talk to him for about thirty minutes. In the course of the interrogation petitioner was confronted by at least one person to whom he owed money. At approximately 1:20 a. m. Grant was told to take down his pants and to pull out and give to the detectives some of his own public hairs, presumably to compare with hairs found on the body of the deceased.² The suspect was then required to strip naked while Detectives Shepard and Utes conducted a "physical examination." Detective Holmes told Grant that two abrasions on his knees absolutely indicated his guilt. At that point — approximately 2:00 a. m. — Grant succumbed and confessed to the murder of Mrs. Nudel.³

The detectives called a police department stenographer to come to the station, and Grant concluded his formal statement of confession at 2:30 a. m. The statement was then typed, and it was read to and signed by Grant. From that time until about 5:15 a. m. Grant remained in the presence of his accusers and was not permitted to sleep. He was then taken by police officers to the Nudels' upholstery shop and was asked to reenact his confession. After a "dry run" or rehearsal, a movie of the performance was taken, with Grant in jail or prison garb acting the role of the murderer and with a detective playing the role of the victim. Over defense counsel's strenuous objections, this enacted "confession" was shown to the jury at Grant's trial.

On July 11, 1961, some two weeks after the initial confessions, petitioner, who was still incarcerated, complained of headaches and asked to see a doctor. In response the State Attorney's Office sent Dr. Harry Moscowitz, a psychiatrist, to examine Grant. Dr. Moscowitz testified at trial that he "followed the usual format of a psychiatric examination." He determined that the headaches had begun when Grant found a cockroach in his ear and were not of a neurological-psychiatric nature. The psychiatrist then engaged Grant in a discussion about why he was in jail and elicited from him a description of the murder that conformed substantially to the initial confession. The state presented Dr. Moscowitz as a witness at Grant's trial, and over strong defense objections, offered Grant's statements to Moscowitz as a third "confession."

Primarily on the basis of the three confessions, Grant was convicted upon a trial by jury in December 1961 for first degree murder and was sentenced to death. The conviction was affirmed by the Supreme Court of Florida, with two Justices dissenting. Grant v. State, Fla.1965, 171 So.2d 361. The present appeal is from an order of the United States District Court for the Southern District of Florida dismissing, without a hearing, Grant's petition for writ of habeas corpus. Petitioner asks that we reverse the district court's order and grant the writ on the grounds that : (1) all three of the confessions were involuntary and their admission into evidence was a denial of due process ; (2) admission of the filmed reenactment into evidence at trial was so highly prejudicial and inflammatory as to deny petitioner his constitutional right to a fair trial ; and (3) the state trial court erroneously and harmfully limited inquiry by defense counsel into an alleged confession by Mr. Nudel. We agree with petitioner that the confessions upon which he was convicted were involuntary and that he is therefore in custody in violation of the Constitution. Because petitioner is entitled to relief on this ground, we do not reach the other issues raised on appeal.

In the landmark decision of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court delineated specific procedures to safeguard the Fifth Amendment privilege against self-incrimination during in-custody interrogations. If Daniel Grant's trial had taken place after the date of the Miranda decision, the involuntariness and inadmissibility of his confessions would be established beyond peradventure. We recognize that the strict requirements of Miranda are not to be applied retroactively. Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Miranda, however, neither invoked a miracle nor marked the genesis of judicial vigilance prior to which the courts were oblivious to overzealous and abusive police interrogation practices. That decision was simply a milestone in the steady advance of Anglo-Saxon jurisprudence in the civilized treatment of the criminally accused. Only five years after the Wickersham Commission aroused public consciousness with its famous report on police abuses,⁴ the Supreme Court reversed a Mississippi conviction based on confessions obtained by whipping the accused with a buckle-adorned leather strap. Brown v. Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. In his forceful opinion for the Court, Chief Justice Hughes served notice — thirty years before Miranda — that "the rack and the torture chamber may not be substituted for the witness stand," 297 U.S. at 285-286, and that these and other barbaric paraphernalia designed to extract and extort confessions would be denounced and proscribed when evidenced.

Although the facts of subsequent cases never reached the level of brutality of the beatings in Brown, the Court continued to scrutinize confessions. The Supreme Court long "has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 1960, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242. As the Court noted in Spano v. New York, 1959, 360 U.S. 315, 321, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265,

as law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made.

Writing for the majority in Davis v. North Carolina, 1966, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, Chief Justice Warren declared that

the nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo v. Illinois, 378 U.S. 478 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). This Court has undertaken to review the voluntariness of statements obtained by police in state cases since Brown v. Mississippi . . . . The standard of voluntariness which has evolved in state cases under the Due Process Clause of the Fourteenth Amendment is the same general standard which applied in federal prosecutions — a standard grounded in the policies of the privilege against self-incrimination. Malloy v. Hogan, 378 U. S. 1, 6-8 84 S.Ct. 1489, 1492-1493, 12 L.Ed.2d 653 (1964).

Thus, "voluntariness" was not a new word introduced by Miranda into our jurisprudential lexicon, and the prospectivity of that decision did not bless all previous confessions. See generally Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 938-1036 (1966).

The test for admissibility of a confession in a pre-Miranda case is whether, considering the "totality of the circumstances," the defendant's statements were voluntary. Clewis v. Texas, 1967, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 ; Fikes v. Alabama, 1957, 352 U.S. 191, 197, 77 S.Ct. 281, 1 L.Ed.2d 246. Such a standard is, of course, easier to state than to apply. We know of no simple measuring device that would enable us to compare the relative...