Outing v. State of North Carolina, 10926.

• Decision Date: 21 July 1967
• Docket Number: No. 10926.,10926.
• Parties: George H. OUTING, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

383 F.2d 892 (1967)

George H. OUTING, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee.

No. 10926.

United States Court of Appeals Fourth Circuit.

Argued January 9, 1967.

Decided July 21, 1967.

Frank N. Cowan, Richmond, Va. (Court-appointed counsel), for appellant.

Theodore C. Brown, Jr., Staff Atty., Office of Atty. Gen. of North Carolina, Raleigh, N. C. (T. Wade Bruton, Atty. Gen. of North Carolina, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and KAUFMAN and RUSSELL, District Judges.

HAYNSWORTH, Chief Judge:

In this habeas corpus proceeding, a North Carolina prisoner attacks a confession as involuntary. The case was here once before on appeal from a dismissal of the petition after a review of the record of the state trial. We reversed the summary dismissal,¹ because, while the state court judge made a conclusory finding that the confession was voluntary, there were no subsidiary findings resolving the underlying factual disputes. Upon remand, after a plenary hearing, the District Court made subsidiary findings resolving the factual differences against the prisoner's claims.

On this appeal, we must accept the subsidiary findings, because there is adequate support for each of them in the record, and we think they sufficiently support the ultimate finding that the confession was not involuntary.

Outing was contacted as a police informer. A taxicab driver had been slain with a knife-like weapon and robbed. His body was discovered in his taxicab early one morning in an area near a residential section in which Outing's parents lived and into which Outing, himself, and his wife had just moved. The detectives, searching for leads, sought Outing's assistance in identifying people who had been seen coming from the area in which the taxicab was found during the early morning hours on that day.

Outing gave them some leads and was requested to stop by the detectives' office that afternoon. Outing went there and gave the detectives some more information which was passed on to other detectives who attempted to verify the information obtained from Outing. Outing was carried home early that night, or part way home according to his testimony, and the next morning, a Friday, two detectives again contacted him. He agreed to go with them after they carried him to a store where he made some purchases and returned them to his wife. Outing's statements on Thursday about persons he had seen coming from the area where the taxicab had been found had all proven false, and on Friday he was confronted by his uncle and charged with lying. Outing, continuing to give the detectives bits of information, informed them that he had seen someone throw a knife into a wooded area in the general vicinity in which the taxicab was found in the early hours of Thursday morning. Two detectives took him to that area, and the three of them made a fruitless search of it, after which they returned to the detectives' office.

Because Outing had given them so much false information and because of his statement about having seen someone throwing a knife away at exactly the relevant time, the detectives thought that Outing probably knew something about the crime which he was concealing. They had him locked up in the police station. There was no arrest warrant. There was no charge, but at the cell door the detectives told the jailer in Outing's presence that Outing should be allowed to use the telephone to call whomever he wished, his wife, a lawyer, or a minister. In his testimony, Outing confirms the fact that he was given general permission to use the telephone, but denies there was any suggestion of whom he might call.

On Saturday, Outing was returned to the detectives' office and thence to the area which had been searched the night before. The detectives and Outing are all agreed that until then there had been no effort to extract a confession from Outing. Indeed, nothing had been said by the detectives to suggest that they thought or suspected that he had any direct involvement in it. Except for having been kept in jail Friday night, he was being treated as the cooperative informer he purported to be. When he was questioned, it was about the activities of others, but on Saturday afternoon he changed his story of the day before about having seen someone throwing a knife away to claim that he had been paid three dollars by someone else to dispose of a French knife. In the area being searched, he ultimately led the two detectives to a manhole and, when the cover was removed, there was disclosed a French knife such as he had described.

The detectives summoned a photographer to take pictures of the knife before its removal and, at least, one other detective arrived on the scene with him. After the pictures had been made, the newly-arrived detective, Fesperman, who had not previously talked to Outing, fired his pistol once or twice, according to the detectives, two or three times, according to Outing.

Here, for the first time, there is wide divergence in the testimony. According to Outing, Fesperman fired in his direction, after which he told Outing that if he did not confess to the murder "the same thing is going to happen to you." According to the detectives, Fesperman was some thirty feet from Outing. One of the detectives was standing with Outing in apparently idle conversation, and the other two were, generally, in between Outing and Fesperman. They were in a wooded area. Fesperman said he had some old ammunition, and he wished to see if it would fire. He fired into a thicket at some flash bulbs which had been discarded by the photographer, the direction of the fire being away from Outing. The detectives stoutly deny that anyone said anything to Outing resembling the words attributed by him to Fesperman. Indeed, according to the detectives, there was nothing in the firing incident calculated in the least to frighten or intimidate Outing.

After Fesperman's firing of his pistol, one of the detectives walked with Outing out of the wooded area. They sat down on a grassy bank by a road. Outing told the detective he could see his father up on the hill and, according to the detective, presently said that he would like to "get the mess over with" and would like to talk to his wife. Outing confirmed the fact that he asked to speak to his wife without reference to any general declaration that he would like to "get the mess over with."

In any event, Outing was returned to the detectives' office, and his wife was brought there. The two were placed in a room where they could converse privately, whereupon Outing escaped through a window.

The next morning, Sunday, Outing was arrested at the home of a relation of his wife. After his return to the detectives' office, according to Outing, he was struck and told that if he did not confess, Detective Fesperman would shoot him. According to the detectives, nothing of the sort occurred. He was told that he need say nothing and anything he did say could be used against him, whereupon, after a very short period of questioning, he confessed to the murder-robbery. He refused to sign a written version of his oral confession, but told his father of the crime later that morning.

The only real disputes in the testimony concern Fesperman's firing of his pistol in the woods and what happened on Sunday morning immediately preceding the confession. The District Court accepted the detectives' version of both events. Their clear, positive testimony supports the findings.

We are left then with a case in which the only hallmark of coercion is the illegal detention Friday night² and Saturday until his escape on Saturday evening. There was no probable cause to arrest him or to charge him with any crime. The illegal detention was not an incommunicado one, however. While Outing denies that anyone referred to his calling a lawyer, he readily agreed that he and the jailer both understood that he could call whomever he wished. On Saturday afternoon when he asked to see his wife, his request was promptly granted. There is not even a claim of coercive questioning of him during that period. The record discloses no questioning of him whatever on Saturday after the shooting incident. If the detective who testified that, as the two sat on the bank, Outing, after referring to the fact that he could see his father in the distance, expressed a wish to "get the mess over with," understood this as a statement of a purpose to confess, he did not then pursue it. The record discloses no questioning whatever of Outing after that remark, if it was made, until after he had seen his wife, escaped, and was recaptured on Sunday morning.

It is perfectly plain from the entire record that, from the outset, Outing had a compulsive impulse to involve himself. Out of an excessive enthusiasm for his role as informer and assistant to the detectives, he immediately responded with information concerning others, all of which ultimately proved to be false. Not content with leaving matters as they were, he persisted in an apparent effort to prove his worth and usefulness by giving additional information, some of which ultimately involved himself with the disposition of the knife. It may have been an act of stupidity,³ but he, himself, kept the conversation going, involving himself when further false information about others would no longer suffice. A confession was the inevitable conclusion of the course he had set for himself, and it well may be that by Saturday afternoon he had come to a tentative decision to tell the whole story after talking to his wife. All of this is quite apart from any sense of oppression or coercion from any conduct of the detectives. At least, when we accept the District Court's resolution of the testimonial conflict about Outing's claims of crude physical threats and violence, we are unable to say that the single circumstance of the illegality of the detention Friday night and Saturday and the probable illegality of...