Kelley v. United States

• Decision Date: 26 July 1956
• Docket Number: No. 12857.,12857.
• Citation: 99 US App. DC 13,236 F.2d 746
• Parties: Stephen S. KELLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

99 US App. DC 13, 236 F.2d 746 (1956)

Stephen S. KELLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 12857.

United States Court of Appeals District of Columbia Circuit.

Argued March 23, 1956.

Decided July 26, 1956.

Mr. Bennett Boskey, Washington, D. C., (appointed by this Court) for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., at the time record was filed, Lewis Carroll and Alfred Hantman, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and FAHY, Circuit Judges.

FAHY, Circuit Judge.

In Kelley v. United States, 95 U.S.App. D.C. 267, 221 F.2d 822, we reversed appellant's earlier conviction of robbery and remanded the case for a new trial, with opportunity for pre-trial proceedings with respect to the competency of the accused to stand trial. Pursuant to 18 U.S.C. § 4244 (1952) such proceedings were had, resulting in a judicial determination that appellant was competent to stand trial. He was retried, was again convicted and again appeals.¹

We dispose first of appellant's contention that the prosecution failed to establish beyond a reasonable doubt that he was sane when the indicted offense occurred. Two doctors testified. One said that on the basis of two examinations about three months after the robbery Kelley was of unsound mind when examined, suffering from dementia prae-cox, and that the condition had existed "a considerable period of time." He did not, however, connect the disease in any explicit manner with the crime. The other doctor examined appellant once, in July, 1952, but in testifying did not remember him except from the record of his findings. On refreshing his recollection, apparently from the record referred to, he believed appellant had been of unsound mind "for some time." He too omitted any explicit reference to the mental disease as a cause of the crime.²

Other witnesses also gave material evidence on the sanity issue. These included employees of the telephone company who witnessed the robbery,³ officers who arrested appellant and interviewed him at some length, and a motor company credit manager who sold appellant a Cadillac car about five days after the robbery. He testified about appellant selecting the car, filling out a credit application, and finally consummating the sale in the name of a brother, making a deposit of $1,350 in small bills.⁴ This witness testified he talked to appellant off and on practically the whole day; that appellant was well-dressed, well-mannered and well-spoken, and impressed him as well-educated; that he was responsive; that the application was completed with information supplied by appellant and contained quite a number of statements as to his personal history and background; that appellant discussed various subjects, running the gamut from sports to literature and there was nothing unusual about his demeanor, appearance or remarks.

On the whole evidence it was for the jury to decide the issue of sanity. They were well instructed within the principles laid down by this court in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, and on this record we should not disturb their resolution of the issue. See Holloway v. United States, 80 U.S.App.D.C. 3, 148 F.2d 665; Bell v. United States, 93 U.S.App.D.C. 173, 210 F.2d 711.

We are obliged however, to reverse and grant a new trial because of the erroneous admission of prejudicial evidence as now explained.⁵ Lewis J. Wilkins had been indicted and originally tried with appellant for the same robbery. He was found not guilty by reason of insanity. In the case now under review appellant accordingly was tried alone. The evidence against him was circumstantial. A taxicab driver identified him as a fare he had driven with Wilkins to the vicinity of the robbery at approximately the time it occurred and driven away again after they had been gone a short time. But neither of the two telephone company employees who witnessed the robbery and who testified could positively identify appellant as a participant. About two days after the arrests Wilkins and appellant were interrogated in the presence of each other and of Officers Reed and O'Neill concerning a statement of the taxicab driver who identified Wilkins and appellant. Officer Reed testified that Wilkins admitted the truth of what the taxicab driver had said about the trip to and from the vicinity of the crime, but that when he asked Kelley if he had anything to say about this Kelley responded, "I do not wish to comment on it until I see my lawyer."⁶ The relation by the officer of what the taxicab driver and Wilkins had said was by itself inadmissible because hearsay evidence, for it was evidence of statements made by persons other than the witness, introduced in order to establish the truth of the statements. However, admissions or confessions are admissible against the party who made them despite the rule against hearsay evidence,⁷ and the Government contends that the statements of the taxicab driver and Wilkins, when coupled with appellant's reaction to them, constitute an admission or confession by appellant, since the jury could infer from his refusal to deny the accusations that he admitted their truth.

The general principle applicable to this type of evidence is that an accusatory statement and the defendant's failure to deny it are admissible only if the circumstances are such "as would warrant the inference that he would naturally have contradicted it if he did not assent to its truth." Sparf v. United States, 156 U.S. 51, 56, 15 S.Ct. 273, 275, 39 L.Ed. 343. See cases cited in Annotations, 80 A.L.R. 1235, 115 A.L.R. 1510. There is uncertainty among the decisions, both within and without this jurisdiction, as to whether the fact of arrest is alone sufficient to negate any such inference predicated upon the silence of the accused. Compare Dickerson v. United States, 62 App.D.C. 191, 65 F.2d 824, certiorari denied 290 U.S. 665, 54 S.Ct. 89, 78 L.Ed. 575; Hardwick v. State, 26 Ala.App. 536, 164 So. 107; Raymond v. State, 154 Ala. 1, 45 So. 895; and People v. Amaya, 134 Cal. 531, 66 P. 794, with Skiskowski v. United States, 81 U.S.App. D.C. 274, 279, 158 F.2d 177, 182, certiorari denied sub nom. Quinn v. United States, 330 U.S. 822, 67 S.Ct. 769, 91 L.Ed. 1273; United States v. Lo Biondo, 2 Cir., 135 F.2d 130; McCarthy v. United States, 6 Cir., 25 F.2d 298; and People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689. Courts which exclude the evidence point out that when a person is under arrest many motives other than a reluctance to tell the truth may cause him to remain silent in the face of an accusation. O'Hearn v. State, 79 Neb. 513, 522, 113 N.W. 130, 134, 25 L.R.A.,N.S., 542, states this rationale as follows:

"* * * Perhaps the weight of authority in this country is with those courts which hold that the mere fact of arrest is sufficient to render a statement made in the presence of the prisoner to which he makes no reply incompetent evidence, for the reason that no assent can be presumed under such circumstances, and that the very surroundings of the accused in such case are such as to render it entirely proper and natural for him to keep silent in the fear of misquotation or misconstruction. A person in such a situation would naturally fear that the worst possible interpretation would be placed upon his language, that the memories of those present would lean to statements prejudicial to his interests, and that an officer seeking to convict might supply through zeal any defect in the statement which was actually made."

And in State v. Hester, 137 S.C. 145, 185, 134 S.E. 885, 898-899, the court said:

"* * * It cannot be disputed, that many people, and even persons who are entirely innocent of wrongdoing, are afraid to talk in the presence of detectives. We must not forget, too, that from time immemorial it has generally been conceded an unwise thing for those charged with criminal offenses to talk to anybody and everybody about their cases, and especially to engage in conversation with those who may not be friendly to them. For years and years the members of the bar have cautioned their clients not to discuss their cases with those with whom they came in contact, unless absolutely assured of their friendship, and many good lawyers have advised clients to refrain from talking at all. This has been the practice so long that it has become a well-known fact to our people generally."

But we need not select the rule we would apply had the accused simply remained silent, for he spoke, and gave as his reason for refusing to make a statement his desire first to consult his lawyer. In this situation the factors mentioned in the above quotations are reinforced by an explicit rebuttal of any inference that the accused was admitting the truth of the accusations, and the rule stated by Chief Judge Laws in United States v. Kelly,⁸ D.C., 119 F.Supp. 217, 221-222, applies:

"But whatever may be the correct rule with regard to silence on the part of a defendant upon reading a statement attributing crime to him, the facts of this case present a different problem. Defendant Kelly was not silent. His statements `I\'ll tell my story to my lawyer\' and `I have nothing to say at this time\' appear to be the assertion of his legal right to refuse to talk. During an examination by the police while under arrest a defendant, usually conscious and often cautioned that anything he says may be used against him, well may be restrained from participating in a discussion of the case with police officers by a belief his interests will better be served at the time by exercising his right to remain silent. It is not reasonable to interpret an assertion of right as constituting an admission of guilt. Kelly\'s refusal to comment on Washington\'s confession may therefore not be construed as an admission of guilt, and is not admissible in evidence

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