Michaud v. Robbins

• Decision Date: 22 April 1970
• Docket Number: No. 7468.,7468.
• Citation: 424 F.2d 971
• Parties: Fortunat J. MICHAUD, Petitioner, Appellant, v. Allan L. ROBBINS, Warden, Maine State Prison, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

424 F.2d 971 (1970)

Fortunat J. MICHAUD, Petitioner, Appellant, v. Allan L. ROBBINS, Warden, Maine State Prison, et al., Respondents, Appellees.

No. 7468.

United States Court of Appeals, First Circuit.

Heard March 3, 1970.

Decided April 22, 1970.

Pierce B. Hasler, Portland, Me., with whom Donald F. Fontaine, Portland, Me., and R. John Wuesthoff, Saco, Me., were on brief, for petitioner, appellant.

John W. Benoit, Jr., Deputy Atty. Gen., for respondents, appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Petitioner's appeal from the district court's denial of his petition for habeas corpus relief — 263 F.Supp. 535 (D.Me. 1967) — challenges the voluntariness of a confession given by petitioner which contributed to his conviction for the murder of an eleven year old girl.¹

The murder, confession and trial having occurred in 1955, the state is not held to the standards of conduct laid down 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). Johnson v. New Jersey, 384 U.S. 719, 721, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Our question is whether the confession in question was the result of an overbearing of petitioner's will by the police authorities, a judgment to be made only after a thorough examination of the record. Davis v. North Carolina, 384 U.S. 737, 739, 741-742, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

The facts have been clearly, thoroughly, and accurately set forth in the opinions of the district court and the Supreme Judicial Court of Maine. We need only sketch the background concerning the contested confession. The Saco, Maine police, in search of a missing young girl, pursued a tip which led an officer to petitioner's house around 9:00 p. m. in late August 1955. Petitioner, at that time a boy of fifteen with a near normal intelligence but a mental age of only twelve, was still in the seventh grade, could not read, write or tell time, and had few friends. He had lived with foster parents since age two, though his real parents were still living, in a distant locality. Because petitioner admitted having been with the missing girl earlier that day, the policeman asked the foster mother if he could take petitioner to the police station to continue the investigation; she assented. The police having no substantial reason at this point to suspect that petitioner was responsible for the girl's disappearance, no arrest was made or warnings given.

Pursuing the only information they had, two policemen questioned petitioner from about 9:30 p. m. until about midnight concerning what he and the girl had done together that day and when he had last seen her. Petitioner said that they had departed when he went up over some railroad tracks and the girl turned away and went home. At around midnight, petitioner inadvertently gave a different account of when he had last seen the girl, suggesting to the policemen that the girl had walked up the tracks with him. When confronted with this, petitioner, by nodding his head to a question, admitted that the girl was still up there. Petitioner claimed that he then offered to lead the police to the scene in return for a promise of leniency and that he received such a promise in writing. This was denied by the police and his trial attorney. At this point, petitioner led the police to the place in the woods near the railroad tracks where he had left the girl. Here they found her. A local doctor who accompanied them ascertained that she was dead. The three men and petitioner returned to the police station to call the Maine State Police and others. Petitioner remained in the police chief's office with one of the policemen.

At around 4:00 a. m., a State Police officer, after warning petitioner that his statements could be used against him, engaged petitioner in conversation. Petitioner told the story of his going into the woods with the girl, striking her, and dragging her a considerable distance to the spot where he had led the police. At 6:00 a. m., after further warnings, a statement was reduced to writing by a deputy sheriff and signed by petitioner. That morning counsel was appointed for petitioner and he was arraigned. A few days later, he was sent to the Augusta State Hospital for determination of his sanity and mental capacity and told his story in detail to the psychiatric staff.

There were, in effect, five confessions admitted at the trial: the nodding admission that the girl was still in the woods by the railroad tracks; his leading the police to the girl's body; the 4:00 a. m. oral statement; the 6:00 a. m. written statement; and the narration of the crime at the State Hospital. Petitioner has explicitly confined his attack in this appeal to the voluntariness of the first two confessions, which he has treated as one. Moreover, since none of the other three confessions were objected to during the state habeas proceeding in 1964, 28 U.S.C. § 2254 precludes us from considering their constitutional validity.²

In applying such cases as Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), to the circumstances before us, we are mindful of a significant difference in starting points. Without exception, the cases cited by petitioner on the involuntariness of confessions of young men have as their starting point the known commission of a crime, followed by the taking into custody and the extensive grilling of the suspect by the police.³ In this case the starting point is the report of a missing person, followed by the custody and interrogation of petitioner, not to ascertain his connection with a crime or elicit a confession but to learn of facts which might help in the search. Since the petitioner was their only lead, the police were entitled to glean from him anything which might aid in their search, and their request to his foster mother that they talk with petitioner at some length at the station does not seem unreasonable in these circumstances.⁴

The threshold for our search for impermissible tactics resulting in an overbearing of petitioner's will is some time after his arrival at the police station. The total time which elapsed before petitioner agreed to lead the police to the girl was about two and a half hours. Although petitioner, represented by able counsel, testified at some length at the state habeas corpus hearing to the events of those hours, the only reference to what happened prior to the very end of the period were three statements: that petitioner was asked to tell what had happened, that he was told he could not leave until he did so, and that at some point he was asked if he had harmed or killed the girl. There was no intimation by petitioner that during the preconfession period he was uncomfortable, fatigued, in fear, or unpleasantly treated. Only two local police officers were present, and there is no suggestion that their questioning was hostile, organized, without respite, or in relays. If, after nine years of reflection, petitioner has nothing more to say about the events of the evening than what we have just reported, we are inclined to believe that there is nothing more which could be said.

The picture which emerges from petitioner's testimony, corroborated by the police, is that for some time after 9:30 p. m. the questioning was directed simply at trying to find out what petitioner knew about the missing girl. Although petitioner did not further indicate the nature of the questions, we infer that the police asked where they had been, when and where he had last seen her, and undoubtedly where he thought she might subsequently have gone. At some point the police apparently were unsatisfied that petitioner was telling all he knew. There was yet a genuine possibility that what was unrevealed may have involved matters falling short of a crime. As time proceeded, however, it appears that the police sensed that something was indeed wrong and that petitioner was responsible for the girl's disappearance. At this point the police should have advised petitioner of his right to counsel and to remain silent, and the absence of such warnings is significant. Davis v. North Carolina, supra, 384 U.S. at 740, 86 S.Ct. 1761.

The critical part of this 2½ hour period was near midnight when petitioner retold his story with a significant detail differing from his prior versions.⁵ When petitioner mentioned that he and the girl walked up the railroad tracks together, a policeman immediately asked, "She's still up there, isn't she?", to which petitioner nodded assent. This to us seems a critical admission, for the police now knew that petitioner and the girl had gone to an area which if necessary could be searched;⁶ that she was so incapacitated that, many hours later, petitioner could think she was still there; and that there was no reason to suspect that anyone else was involved.

While warnings should have been given before this admission, we cannot say that this 1955 performance by the police — given their starting point of trying to locate a missing person — was so impermissible, or...