Pea v. United States

• Decision Date: 20 December 1967
• Docket Number: No. 20433.,20433.
• Citation: 397 F.2d 627
• Parties: Emanuel PEA, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

397 F.2d 627 (1967)

Emanuel PEA, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 20433.

United States Court of Appeals District of Columbia Circuit.

Argued April 18, 1967.

Decided December 20, 1967.

Reargued January 17, 1968.

On Rehearing June 19, 1968.

Mr. Harold David Cohen, Washington, D. C., with whom Mr. J. Laurent Scharff, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Allan M. Palmer, Asst. U. S. Attys., were on the brief, for appellee. Mr. Robert Kenly Webster, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

Reargued En Banc January 17, 1968.

On Rehearing En Banc June 19, 1968.

LEVENTHAL, Circuit Judge.

This opinion considers the voluntariness of appellant's confession of murder.

His case is before us for the third time. On a 1960 indictment appellant was convicted of first degree murder and sentenced to death, but in 1962 this court vacated the judgment and remanded for a new trial because appellant had been represented by a fraudulent imposter-lawyer.¹ A 1963 judgment of imprisonment for 15 years to life on a conviction of second degree murder was affirmed by this court,² but in 1964 the Supreme Court vacated our judgment and remanded for further proceedings not inconsistent with its opinion in Jackson v. Denno, decided that same day. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

The evidentiary hearing on voluntariness of appellant's confession, given while he was in Sibley Hospital, was postponed at the request of defense counsel, who had to contact medical witnesses who had left the country. The trial judge was hospitalized at the time the hearing was held in 1966 and the case was transferred to another judge for disposition.

In Part I of this opinion we quote substantially the entire opinion of the District Judge rendered July 8, 1966, which presents background facts and concludes that the prosecution has shown appellant's confession to be voluntary. In Part II of this opinion we explain why in our view the District Court's ruling must be reversed for failure to apply requisite criteria of voluntariness. A further aspect of the case is reserved for en banc consideration.

I.

The District Court's Opinion that Appellant's Confession Was Voluntary.

What follows is substantially the entire opinion of the District Judge:

"At the July 1, 1966 hearing, Edwin Coppage, an officer of the Homicide Squad, Metropolitan Police Department, and the defendant appeared as witnesses. Also appearing by deposition was Dr. Carlos Mena. There were received in evidence at the hearing defendant's Exhibit No. 1, being the record of Sibley Memorial Hospital concerning defendant's admission on June 28, 1960 and defendant's Exhibit No. 2, the record of District of Columbia General Hospital with respect to the admission and treatment of the defendant between June 28, 1960 and his discharge from said hospital on August 1, 1960.

"Detective Coppage testified that he had been a member of the Homicide Squad of the Metropolitan Police Department since 1953. On the night of June 28, 1960 he responded to a police call to go to the Unit Block of Eye Street, N.W. At 10:45 P.M. he arrived at 66 Eye Street, N.W. where he saw lying on the ground a Negro female who was bleeding from the head. There he met several officers from the First Precinct of the Metropolitan Police Department. Private Harold Cook of that precinct advised Detective Coppage that the female had been shot and that a suspect had been taken to Sibley Memorial Hospital. Private Cook had the gun used in the shooting. Coppage went immediately to Sibley Memorial Hospital, which at that time was located at North Capitol and M Street, N.W., approximately 3½ blocks from 66 Eye Street, N.W.

"Detective Coppage arrived at Sibley Memorial Hospital around 10:53 P.M. At the time he arrived he did not know the circumstances of the shooting or any of the circumstances which had preceded the shooting. He went directly to the emergency room in the hospital and there he found a physician, two nurses, two police officers and a patient who was on a table. The physician was a Dr. Tan.³ The patient was the defendant. At the time Coppage entered the emergency room Dr. Tan was standing alongside the defendant taking his blood pressure. When Dr. Tan completed taking the blood pressure Detective Coppage asked the former if he could talk to the defendant and Dr. Tan advised him that he could do so. Coppage went to the table on which the defendant was lying and observed he had a gauze covering on the upper part of his head as well as one eye.

"Standing two feet from defendant's face, Coppage conversed with him after first advising that he was a police officer. From this conversation he learned that defendant resided on K Street. Defendant informed Detective Coppage that he had shot his wife and thereafter shot himself. The defendant related he had been separated from his wife and that on the evening of June 28, 1960 he obtained a car from the Star Pontiac Company and drove it to his wife's home. The defendant, his wife and their children drove to Virginia and visited with friends. On returning to the District of Columbia they stopped at a place that prepared food to take out and there defendant had bought some french fried potatoes. Thereafter they returned to Eye Street where defendant stopped the car and attempted to persuade his wife to return to him. Upon her refusal to do so and with the statement that she did not want to talk to him any further about the matter, she got out of the car. Immediately thereafter the defendant got out of the car and saying "die and be damned", shot his wife several times with the result that she fell to the ground. Immediately the children began to cry and this upset the defendant. He then shot himself in the head.

"Detective Coppage's entire conversation with the defendant lasted no more than five minutes, during which Coppage asked only several questions requiring a yes or no answer. The rest of the conversation was stated in narrative form by the defendant. Coppage and the defendant were speaking in normal tones and during the entire conversation Dr. Tan, two nurses and the two other police officers remained in the emergency room, which was 18 feet X 40 feet in size.

"Throughout the conversation the defendant appeared to Coppage as being coherent and he had no trouble talking. Detective Coppage smelled no alcohol on the breath of the defendant; he did not show any evidence of pain; and at no time did defendant state that he did not want to talk. Defendant's speech at all times was normal and no medication was administered to defendant during the five minute conversation. At no time during the conversation did Detective Coppage notice anything out of the ordinary in defendant's breathing. As stated above, Detective Coppage knew nothing of the events that had transpired before and learned of them from defendant.

"Following Detective Coppage's conversation with the defendant the former inquired of Dr. Tan if the defendant could be moved to D. C. General Hospital where there were facilities for placing an arrested person under guard, which facilities did not exist at Sibley Memorial Hospital. Dr. Tan then again took defendant's blood pressure and approved the transfer to D. C. General Hospital. He stated he preferred the defendant be moved in an ambulance rather than in a police patrol wagon.

"Detective Coppage then called for the Fire Department's ambulance and when it arrived defendant raised himself on the table to a sitting position from which he was helped to a stretcher by the ambulance attendants. Coppage, at the request of the ambulance attendants, rode in the ambulance to D. C. General Hospital, arriving there between 11:30 and 11:45 P.M. During that trip defendant lay quietly.

"Upon arrival at D. C. General Hospital defendant was immediately moved to the emergency room and there placed on a table where four doctors began examining him. Detective Coppage did not listen to the doctors but instead went out of the emergency room to advise the police officer regularly stationed at D. C. General Hospital of the arrival of the defendant. Some minutes later Detective Coppage returned to the emergency room where he observed the doctors questioning the defendant and that the defendant was having trouble answering their questions making it difficult for the doctors to understand him.

"The Sibley Memorial Hospital record shows that on June 28, 1960 at 10:50 P.M. a physical examination of the defendant revealed presence of a gun shot wound in the right temple. That record states that the defendant was conscious, ambulatory and coherent. The right eye was devoid of vision, was swollen, tender and painful. Palpitation revealed tenseness and evidence of fluid in the socket of the right eye. The record is signed by Dr. Tan and in it he further stated that Dr. L. Williams was notified who in turn suggested calling a neurosurgeon. Defendant's blood pressure was 130/80 and his pulse was 60. Dr. Tan further stated in the record made by him that, upon inquiry by police officers as to whether it would be safe to remove defendant to D. C. General Hospital, he concluded that defendant could withstand the trip and that he was to be conducted to D. C. General Hospital by ambulance.

"The D. C. General Hospital record received in evidence revealed that defendant arrived at D. C. General Hospital at 11:40 P.M. on June 23, 1960. Upon physical examination a small gun shot wound was discovered in the right temporal area of defendant; that his right eye was affected with no light perception; with his left eye defendant could see light and could differentiate objects; that a neurosurgeon's examination revealed nothing...