Mitchell v. United States, 17096.

• Citation: 114 US App. DC 353,316 F.2d 354
• Decision Date: 07 February 1963
• Docket Number: No. 17096.,17096.
• Parties: Luther P. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

114 US App. DC 353, 316 F.2d 354 (1963)

Luther P. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.

No. 17096.

United States Court of Appeals District of Columbia Circuit.

Argued December 17, 1962.

Decided February 7, 1963.

Mr. Rex K. Nelson, Washington, D. C., (appointed by the District Court) for appellant.

Mr. William C. Weitzel, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. Nathan J. Paulson, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, and EDGERTON and WASHINGTON, Circuit Judges.

BAZELON, Chief Judge.

After a trial by jury, appellant was convicted of robbery (D.C.Code § 22-2901) and sentenced to a term of imprisonment of five to fifteen years. His first claim on appeal is that the trial court erred in admitting certain inculpatory statements allegedly made during a period of illegal detention. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

Appellant was arrested on Sunday, August 13, 1961, at 2:45 a. m.¹ He was questioned at police headquarters about a crime not here in issue until about 8:00 a. m., during which time he made repeated requests to contact a named attorney. The police apparently permitted him to telephone the attorney's office, but there was no answer. At 8:00 a. m., he was taken before Judge Howard of the Municipal Court for preliminary hearing.

What transpired there is in dispute. At trial, Judge Howard testified² that "I advised him that he could stand mute; it wasn't necessary for him to testify; it wasn't necessary for him to say anything, and I also advised him that if he did make any statement it might be used against him." Detective Caton testified that Judge Howard advised appellant "that he was not required to make a statement, and if he did make a statement it would be used against him." And Detective Bader testified that appellant was advised that "any statement he made would be held against him; he didn't have to make any statement."

The defendant testified that he received no such warning. The Assistant United States Attorney, Mr. Duffy, who was at the proceeding before Judge Howard, testified: "* * * I will have to say this definitely, it is my best recollection that the defendant was not informed that he was not required to make a statement, and it is again my best recollection that the defendant was not informed any statement he may make would be used * * * against him." The usual notation that the defendant was advised of his rights was not made in the "jacket."³

At the close of the preliminary hearing, the police asked Judge Howard to sign an order releasing appellant to the custody of the Deputy United States Marshal so that he could be taken to police headquarters for six hours for "continuing the investigation."⁴ This request was granted. After two and a half hours of further questioning and a lineup at which appellant was identified as the perpetrator of the instant offense, the police "got a statement from him." This statement was admitted into evidence at appellant's trial over the repeated objections of counsel.

Counsel rested these objections on the ground that defendant had not been advised of his rights until Monday morning, and hence the statement was made during a period of unreasonable delay between arrest and effective preliminary hearing. Throughout the trial, the trial judge assumed that an effective hearing was not held until Monday. He explicitly based his refusal to suppress defendant's statement on the mistaken idea, which he repeatedly expressed, that since defendant was arrested on Sunday, there was no obligation to hold a hearing until Monday. He said, "Of course I would say that since August 13th was a Sunday there was no duty to give the defendant a preliminary hearing until Monday. Judges are just as much entitled to their Sunday as all the other human beings." "* * * The Mallory case rule does not apply because it has been held time and time again that a person who is arrested Saturday night and Saturday afternoon need not be brought before a magistrate until Monday morning." "Personally I think it is cruel and unusual punishment. Personally I think that * * * absurd to give that kind of service to a defendant. It isn't done anywhere else but here. After all he could wait until office hours * * *." "No one is entitled to a hearing between 5:00 o'clock in the afternoon and 10:00 o'clock the following morning, and no one is entitled to a hearing between Saturday noon and 10:00 o'clock the following Monday morning." "* * * I will overrule the objection on the ground that it was not unreasonable delay and not within the meaning of the rule of the Mallory case to hold the prisoner from the early hours of Sunday morning until Monday morning without a hearing."

This is directly contrary to repeated decisions of this court. It is not true that Rule 5(a) is in effect only during business hours; we held long ago that "both by law and practice * * * application for hearing might have been made to * * * committing magistrates at any hour." Akowskey v. United States, 81 U.S.App.D.C. 353, 354, 158 F. 2d 649, 650 (1946). We recently said: "Not only a magistrate, but an Assistant United States Attorney, are, and were * * * available to the police twenty-four hours a day." Jones v. United States, 113 U.S.App.D.C. 256, 307 F. 2d 397, 399 (1962). Compare Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (1958), cert. denied, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959). Moreover, "if because of some extraordinary circumstance no magistrate were available, it would not follow that questioning could continue." Coleman v. United States, 114 U.S.App.D.C. ___, 313 F.2d 576 (1962). Pending a hearing before a magistrate who informs the suspect of his rights, the police may not "carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt." Mallory v. United States, supra, 354 U.S. at 454, 77 S.Ct. at 1359. We must reject any suggestion that a suspect arrested at noon on Saturday may be questioned in secret by the police for 46 hours without a preliminary hearing.

It seems apparent that throughout the trial the court, in refusing to exclude the confession, relied on this erroneous view of the law. After the closing statements, however, the court called the lawyers to the bench and said: "I think in order that there be no ambiguity in the record, the Court should make certain findings of fact on matters on which the Court had to pass * * *. I find as a fact that Judge Howard, at the preliminary hearing on the morning of Sunday, August 13, warned the defendant of his rights,⁵ or apprised him of his rights, including the right not to make any statement."⁶

In view of Judge Howard's action in turning appellant over to the police for six hours of questioning without counsel, we think that the trial judge's finding of fact does not dispose of appellant's claim. We need not decide whether in some circumstances a magistrate may properly deliver a suspect who has not consulted counsel to the police for interrogation.⁷ We need only decide that this cannot be countenanced where, as here, the record raises substantial doubt that the suspect was informed by the magistrate that he need not answer any question asked by the police in any such interrogation, and that any answer or statement he gives may be used against him. In Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335, cert. denied sub nom. Carter v. United States, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960), a divided court held that in some circumstances a magistrate could permit interrogation after a preliminary hearing, but the court stressed that counsel had "consulted with appellants for about 15 minutes advising appellants of their rights," and that "The Municipal Judge formally gave them the same warning."

And in Robinson v. United States, 113 U.S.App.D.C. 372, 308 F.2d 327 (1962), the court pointed out that the accused was "fully" advised of all his rights before being turned back to the police.

Here there is doubt concerning not only what the magistrate said at the Sunday hearing about the right to remain silent, but also whether he said anything about it. The Assistant United States Attorney testified, as a Government witness, that the magistrate did not; and the usual notation that such a statement was made is absent. And even the testimony that the magistrate said something about the right to remain silent is subject to the construction that he told the accused only that he need make no "statement" at the preliminary hearing. There was no testimony that the accused was ever judicially informed that he need not answer any question put to him by the police at the forthcoming six-hour interrogation. And the trial judge made no finding that the accused was ever told that "any statement made by him could be used against him."⁸

Since the record provides no assurance that the accused was adequately informed of his rights, we hold that his confession was obtained in violation of Rule 5(a) and (b) and is therefore inadmissible.⁹

We turn now to appellant's claim that the trial judge erred in denying him a mental examination.

On the morning of trial, defense counsel made a written motion for a mental examination. It alleged that the defendant, that very morning, had "displayed to counsel a file containing copies of letters he has directed to the President of the United States, Eleanor Roosevelt and members of the United States Senate, which raise inquiry in counsel's mind with respect to the defendant's mental situation." It also alleged that counsel had just "learned that the defendant is epileptic and has been so for some period of time; that he apparently...