Killough v. United States

• Citation: 119 US App. DC 10,336 F.2d 929
• Decision Date: 04 June 1964
• Docket Number: No. 17960.,17960.
• Parties: James W. KILLOUGH, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

119 US App. DC 10, 336 F.2d 929 (1964)

James W. KILLOUGH, Appellant, v. UNITED STATES of America, Appellee.

No. 17960.

United States Court of Appeals District of Columbia Circuit.

Argued January 8, 1964.

Decided June 4, 1964

Mr. William B. Bryant, Washington, D. C., for appellant.

Mr. Gerald A. Messerman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before WASHINGTON, DANAHER and WRIGHT, Circuit Judges.

WASHINGTON, Circuit Judge.

In Killough v. United States, 114 U.S. App.D.C. 305, 315 F.2d 241 (1962), a majority of this court en banc held that where a police officer procured illegally, in violation of FED.R.CRIM.P. 5(a), inadmissible oral and written confessions from Killough, it was error to admit at the trial Killough's second confession to the same police officer made orally at the District of Columbia Jail because it was "the fruit" of the first confessions. We said, inter alia, 114 U.S.App.D.C. at 310, 315 F.2d at 246:

"* * * the basis for our opinion is that the jail confession was the result of the previous confessions which were invalidly obtained and concededly inadmissible * * *.

* * * *

"* * * Our opinion excludes only evidence which is due to a violation by the police of their duty under Rule 5(a). Absent such violation and such relationship our opinion precludes no interrogation."

On his second trial held pursuant to our reversal and remand, the appellant was again convicted by a jury of the crime of manslaughter and was sentenced by the District Court to serve a term of five to fifteen years. He appeals, asserting that it was error to put before the jury (1) the incriminating statement he gave to a civilian employee at the District of Columbia Jail, and (2) the evidence provided by certain witnesses, including the Coroner and his staff, relating to a dead body, evidently believed by the jury to be the body of the appellant's former wife, the victim of the manslaughter.

I.

The present case is not concerned with a confession made to the police, to a law-enforcement agent, or to a person investigating crime. The case concerns a statement, not introduced in evidence at the first trial, made by Killough to a university graduate student, working part-time as a "Classification Intern" at the District of Columbia Jail, under the following circumstances:

On October 25, 1960, Killough was brought before a United States Commissioner and charged with first degree murder. Both the Commissioner and the Deputy Clerk at that time advised him¹ that he was not required to make any statement; that any statement he made could be used as evidence against him; that he was entitled to retain counsel and to have a preliminary hearing where he or his counsel could cross-examine the prosecution's witnesses; and that he was entitled to a continuance in order to obtain counsel. Killough said he was undecided about possible representation by counsel and the proceedings were by consent of both parties continued until a named date, about 20 days away. Pending this hearing, Killough was ordered committed without bail to the D. C. Jail on the charge of first degree murder.²

On the morning following his appearance before the U. S. Commissioner, Killough was brought by a Jail officer from the cellblock to the visiting room at the Jail, called the "Rotunda," and was seated at a table with a Classification Intern for an interview. The Intern was 26 years of age and a graduate student at Georgetown University working for the degree of Doctor of Philosophy in history. His duties at the Jail were to interview for 15 hours per week inmates of the Jail. For this he received room and board and a few incidentals such as laundry, shoeshines, etc. Such interviews were routine procedure and were conducted with respect to all inmates. Questions were asked pursuant to an interview form, the first page of which was designed to give information with respect to close relatives or friends of the inmates for purposes of mail and visits. In the case of inmates charged with felonies, further questions were asked with a view to reflecting the inmate's employment, military, and past prison records, and the inmate's version of the offense for which he was charged, if he wished to give it, for purposes of classifying him before trial and placing and treating him after trial. The inmate's answers were recorded on the form by the Intern.

The Intern who interviewed Killough was dressed in civilian clothes and did not identify himself to Killough. He had not been instructed to identify himself and it was his practice not to do so unless he were asked. In response to a specific question he stated that he could not remember whether Killough asked about his identity. He had before him the Jail Classification Form for felony cases, and proceeded to ask Killough questions suggested by the form and to record Killough's answers on it. The Intern testified that, when he reached the part relating to the offense with which Killough was charged, he stated to Killough "You're charged with first degree murder. Do you care to tell me about it or make a statement?" Killough replied that he would do so and gave an incriminating account of the manner in which his wife met her death. The Intern wrote Killough's answer down verbatim and read it back to him. Killough signed it. The interrogation form, showing Killough's answer and signature, was received in evidence.

The Intern testified that prior to the interview he had had no report from, or conversation with, the police or anyone else about the Killough case, and that his only information about the case had been derived from newspaper accounts that he had read. The Intern stated further that he made no threats or promises to Killough. He testified that when an inmate declines to sign, his usual practice is to tell the inmate that his statement will not be used against him. He testified further that if he is asked by the inmate at any time whether such a statement will be used against him, he responds that it is confidential and will not be used against him. He could not remember whether he told this to Killough. Killough however did not decline to sign when asked to do so. The Intern said that Killough answered the questions willingly and cooperatively, although he appeared nervous and disturbed. At one point he stated that his stomach was "getting upset." Other classification interviews were being conducted at other tables in the Rotunda simultaneously.

Following a hearing held pursuant to Killough's motion to suppress the Intern's testimony and the form containing Killough's signed confession, the District Court, in an opinion reported at 218 F.Supp. 339 (1963), ruled that the evidence was admissible.³ It found that Killough's statement to the Classification Intern was not coerced and was voluntary; that it was independent of Killough's first illegally procured confession to the police, was not the fruit thereof, and was made after adequate time for deliberate reflection. Accordingly, it concluded that our decision in the first Killough case did not require exclusion of the evidence as fruit of the poisoned tree.⁴ Since we are of the view that the Intern's testimony and the confession are inadmissible for other reasons, we find it unnecessary to review this holding.

II.

Killough had been committed to the care and custody of the Jail. The statement obtained from him was pursuant to routine procedure and the result of questioning designed to provide information for a specific and legitimate purpose related to the Jail's classification and treatment of persons committed to its care. See Section 24-442 of the D.C.Code, set out in pertinent part in the margin.⁵ Any inmate who inquired was told the identity of the questioner, the purpose of the questioning, and that the inmate's answers would not be used against him. There can be no doubt that an incriminating statement given in reliance upon such a promise by a jail employee performing a proper jail function pursuant to statutory authority would not be admissible.⁶ We do not think that an inmate who fails to inquire as to the purpose of the questioning and the confidentiality of the answers can be penalized by having his answers turned over to the prosecutor and used against him. When the Jail promises confidentiality to one inmate intelligent, astute, or composed enough to inquire under questioning about the use to be made of his answers, we think there is an implied pledge of confidentiality as to all inmates subjected to the classification questioning. The purpose underlying the questioning confirms this; it was inherently a confidential purpose to enable the Jail best to treat the person committed to its care. The rule of fundamental fairness required by the due process clause in our view does not permit use of the incriminating statements made to the Classification Intern in a criminal prosecution under the circumstances present here.⁷

Indeed, in a somewhat comparable situation, that involving an examination pursuant to 18 U.S.C. § 4244, into the sanity or mental competency of accused to stand trial, Congress has specifically provided that no statement made by the accused in the course of the examination "shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding." The wisdom of and need for such a rule in that situation are obvious, and the rule has been recognized even when a statute does not so provide.⁸ Here, although the classification examination of inmates does not take place pursuant to specific authority given by Congress, the Department of Corrections, under the direction and supervision of the District Commissioners, is by Section 24-442 of the D.C.Code given "charge of the management and regulation" of the Washington Jail, including the power "to...