Johnson v. Hall

• Decision Date: 10 September 1979
• Docket Number: No. 79-1061,79-1061
• Citation: 605 F.2d 577
• Parties: Ronald L. JOHNSON, Petitioner-Appellant, v. Frank A. HALL and John E. Bates, Respondents-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 577

605 F.2d 577

Ronald L. JOHNSON, Petitioner-Appellant, v. Frank A. HALL and John E. Bates, Respondents-Appellees.

No. 79-1061.

United States Court of Appeals, First Circuit.

Argued May 11, 1979.

Decided Sept. 10, 1979.

Edward Berkin, Dorchester, Mass., by appointment of the Court, for petitioner-appellant.

Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. App. Section, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Div., Boston, Mass., were on brief, for respondents-appellees.

Before CAMPBELL, Circuit Judge, BOWNES, Circuit Judge, DEVINE, District Judge. ^*

DEVINE, District Judge.

This habeas corpus appeal challenges the admission of a confession at a trial which was concluded prior to the decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Judging the confession in light of the standard of Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), which applies to such trials, ¹ we affirm the district court's decision that it was given voluntarily.

Appellant was convicted in January, 1964, by a Massachusetts jury of first degree murder, armed robbery, and related offenses. It was alleged that on the evening of August 1, 1963, appellant, wearing a mask and armed with a revolver, held up a Boston liquor store and, during subsequent pursuit, shot and killed a Boston police officer. Appellant is currently serving a sentence of life imprisonment. The confession at issue was given to the police during an in-custody interrogation some eight and one-half hours after he was apprehended.

The history of appellant's challenge is fully set out in the opinion of the district court, Johnson v. Hall, 465 F.Supp. 516 (D.Mass.1979) and so we need only sketch it out briefly. Before trial, defense counsel objected to the admission of the confession on the sole ground that it was coerced by the application of physical force by the police. Evidence to support that contention was presented at a lengthy Voir dire, but the trial court found it unpersuasive. In ruling it admissible he stated orally, "I am not satisfied from the evidence that it was not freely and competently given. . . ."

On October 1, 1964, in reliance on Escobedo, supra, decided subsequent to his conviction, appellant moved for a new trial alleging that his confession should have been excluded because it was made while he was without counsel. After conducting an evidentiary hearing, the trial judge denied the motion. In his "Findings, Rulings and Order" he distinguished this case from Escobedo on the basis of his finding that appellant had not requested and had not been denied opportunity to consult counsel.

The Supreme Judicial Court of the Massachusetts affirmed the conviction. Commonwealth v. Johnson, 352 Mass. 311, 225 N.E.2d 360 (1967). In the course of its opinion, the court noted: "When the statement was sought to be introduced at trial, it was prima facie voluntary. The burden was on the defendant to show that the statement was not voluntarily made." 225 N.E.2d at 363 (citations omitted). As to the appellant's contention that the trial judge should have considered several factors which would have required a finding of voluntariness failure of the police to warn appellant of his rights and appellant's mentality and physical condition at the time the confession was made the court concluded that the failure to raise those factors at either the Voir dire or the trial foreclosed the issue on appeal. The court went on, however, to note that the trial court had indeed considered those factors and that "(t)he judge's extensive findings of fact show that he was not required, as a matter of law, to conclude that the statement was involuntarily given." 225 N.E.2d at 365.

Certiorari was granted but, following oral argument, was dismissed as improvident. Johnson v. Massachusetts, 390 U.S. 511, 88 S.Ct. 1155, 20 L.Ed.2d 69 (1968). In July 1976 ² appellant filed his petition for a writ of habeas corpus, which was denied. The same issues are before us on appeal from the district court's denial of the writ.

On appeal, appellant raises three arguments. His first is that the trial court violated his due process rights by failing to consider the "totality of the circumstances" in ruling on the voluntariness of the confession, as required by Procunier, supra, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524, which sets out the due process standard of voluntariness applicable to cases before the Supreme Court's decisions in Escobedo, supra, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694:

The question was whether the will of the defendant had been overborne so that the statement was not his free and voluntary act, and that question was to be resolved in light of the totality of the circumstances.

400 U.S. at 453, 91 S.Ct. at 489. ³ Appellant's second contention is that the rule of Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), that a state must prove a confession voluntary by a preponderance of the evidence before it can be admitted at trial, applies retroactively, and that error was committed when the admissibility of his confession was decided under Massachusetts' pre-Lego rule, which placed the burden on the defendant to prove involuntariness. Commonwealth v. Tuckerman, 10 Gray 173, 194 (1857); Commonwealth v. Congdon, 265 Mass. 166, 197, 165 N.E. 467 (1928); Commonwealth v. Sheppard, 313 Mass. 590, 48 N.E.2d 630 (1943). ⁴ Finally appellant argues that his confession was involuntary as a matter of law.

We find it unnecessary to decide the issues raised by appellant's first two arguments. Because the facts surrounding appellant's confession are undisputed and only the legal conclusion to be drawn from them under the proper constitutional standards is at issue, we are to make an independent determination of voluntariness under the "totality of the circumstances" standard. Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Makarewicz v. Scafati, 438 F.2d 474, 477 (1st Cir. 1971), Cert. denied, 402 U.S. 980, 91 S.Ct. 1685, 29 L.Ed.2d 145 (1971); ⁵ See Procunier, supra, 400 U.S. at 451-52, 91 S.Ct. 485. And because our independent determination leads us to conclude that the confession must be considered voluntary even under the Lego standard, we see no reason to address appellant's claims that Lego is retroactive and that the trial court failed to consider the totality of the circumstances. Thus we focus on appellant's third contention, that his confession was involuntary as a matter of law.

The following facts are undisputed. ⁶ Following the shooting, which occurred at about 9:00 P.M. on August 1, 1963, police pursued and fired at the car which appellant was driving. During the course of the chase, appellant's car went off the road, struck a masonry wall and careened off it, "banged up" against several other cars, and finally collided with an MTA bus. At that point, the injured appellant left the car and ran limping into an alley and over a barbed wire fence. Shortly afterward, at about 9:30 P.M., he was taken into custody after a brief "wrestle". He was taken to a police division where he was booked. At that time he was bleeding from a cut on the right side of his head. During booking he was belligerent and uncooperative. He struggled with and cursed at the police who were holding him. Several other police officers and newspaper reporters were present. The booking room was noisy and photographs were being taken with flashbulbs going off in the process. When he was shown a printed form entitled "Prisoner's Right to Use Telephone", he refused to sign it and declared that he knew his rights.

Shortly after 10:15 P.M. he was taken to police headquarters. Between midnight and 4:00 A.M., August 2, he was in four line-ups. There was some evidence that at one point there was a "commotion" when appellant was brought into the line-up room; he seemed to be "pushed" into the room. Appellant, a black man, appeared in the line-ups with other black men and several white men. Only appellant had torn clothing and blood on his face or head. None of the others had a build similar to appellant. Upon being identified by various witnesses during the course of the night, he was asked by the investigating detective if he had anything to say. ⁷ He responded on several occasions with questions to the witness, challenging the accuracy of the identification.

At about 5:50 A.M. he was interrogated for about forty minutes by the detective. Present were two other officers and the police stenographer. The recorded answers to the questions constitute the contested confession. Appellant never requested to consult with counsel; but although he was never denied the opportunity, neither was he advised of his right to do so. He was never given the now so-called Miranda warnings.

The record also shows that in the course of the evening as many as 100 police officers were "in contact with" appellant: There were seven or eight in the robbery squad room; there were dozens "in the corridor"; and, there were between forty-five and one hundred in the line-up room.

Later in the morning of August 2 at the Charles Street Jail, it was found that there was a discolored ("ecchymotic") area below his left eye, abrasion of his right thigh, and a scalp laceration. On August 16 it was found that he had a subdural hematoma, "a collection of blood between the dura and the brain itself", which in the opinion of the operating surgeon, "could have been there anywhere from one or two weeks".

At the time of his arrest, appellant was twenty-nine years old with a sixth grade education and an I.Q. of 86.

The test of voluntariness is whether the confession was "extracted by any sort of threats or violence, ...