Pettyjohn v. United States

• Decision Date: 16 May 1969
• Docket Number: No. 21666.,21666.
• Citation: 136 US App. DC 69,419 F.2d 651
• Parties: Carl D. PETTYJOHN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 69, 419 F.2d 651 (1969)

Carl D. PETTYJOHN, Appellant, v. UNITED STATES of America, Appellee.

No. 21666.

United States Court of Appeals District of Columbia Circuit.

Argued January 17, 1969.

Decided May 16, 1969.

Rehearing Denied November 19, 1969.

Mr. Martin S. Thaler, Washington, D. C. (appointed by this court), with whom Mr. Walter B. Laessig, Washington, D. C., was on the brief, for appellant.

Mr. Daniel E. Toomey, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before BURGER, TAMM and ROBINSON, Circuit Judges.

Rehearing En Banc Denied November 19, 1969.

TAMM, Circuit Judge:

Appellant seeks reversal of his conviction of first degree murder (22 D.C.Code § 2401 (1967)).¹ Since we find that none of appellant's three allegations of error necessitate reversal, his conviction must be affirmed. Only two of these allegations require discussion.

Undisputed testimony adduced at trial reveals that at approximately 1:30 a. m. on August 4, 1966, appellant drove his car alongside another vehicle in the northwest section of Washington, D. C., and twice fired a shotgun into that vehicle wounding one of its three occupants. Appellant then "pulled" Miss Barbara Thomas, one of the occupants, into his own automobile and drove away. At approximately 2:40 a. m. appellant entered the Twelfth Police Precinct in the District of Columbia. Sergeant Brown testified that appellant approached him and stated that "he wanted to turn himself in" because he had shot and killed one man and "had also killed his girl friend." Upon query by the officer as to where his girlfriend was appellant answered "She's on the front seat of my car and my car's parked on the rear lot." Sergeant Brown left appellant in the custody of another officer and proceeded to the parking lot where he discovered Miss Thomas strangled to death on the front seat of appellant's car. Upon returning to the precinct house Sergeant Brown formally placed appellant under arrest.²

At this point there is somewhat of a conflict in testimony. A pretrial hearing on appellant's motion to suppress was conducted by the court. During this hearing Sergeant Brown testified that immediately after placing appellant under arrest he produced his PD-47 card³ and began to read it. A telephone interruption intervened and the officer handed appellant the card to read. Upon completion of the telephone call Sergeant Brown testified that he asked appellant if he had read and understood the card and appellant responded in the affirmative (Tr. 46). Sergeant Brown testified that he then queried appellant as to whether he wanted a "legal neighborhood lawyer." Appellant answered in the negative.

Detective-Sergeant Crooke (a member of the Homicide Squad who was called to the Twelfth Precinct by Sergeant Brown) testified that he approached appellant, advised him that he was under arrest, and told him that he was charged with homicide. Next, Detective-Sergeant Crooke asked appellant if he had been advised of his rights. Upon an affirmative response the officer testified that he read his PD-47 card to appellant (Tr. 61). In addition, the officer testified that he specifically told appellant that "if he couldn't afford a lawyer * * a lawyer would be obtained for him" (Tr. 62). After issuing these warnings, Detective-Sergeant Crooke asked appellant if he wanted to "talk about" the crime (Tr. 76). Appellant said that he did and the officer testified that they conversed from approximately 2:50 a. m. until shortly after 3:00 a. m. The officer testified that he took notes during the conversation. The officer further testified that appellant described generally the events leading up to the murder. Included within this narrative was appellant's statement that "she already knew I was going to kill her. I told her I was going to kill her * * * last Sunday" (Tr. 67). At the conclusion of this discussion the officer asked appellant if he "wanted to give a typewritten statement of what he had said" (Tr. 67). Appellant responded in the negative and the officer testified that appellant said: "No, I already told you about it and you wrote it down" (Tr. 67). At this time the discussion was terminated and the officer left the Twelfth Precinct with appellant and took him to the Homicide Squad office. Upon arrival at the homicide office at approximately 3:15 a. m. the officer produced police form PD-54⁴ and read it to appellant. Appellant signed this form (see Tr. 70-71, Government exhibit No. 2) after it was read to him. Upon completion of this signing the officer again asked appellant if he wished to make a typewritten statement. Appellant again answered "no" and was locked up until 10:00 a. m. the following morning, at which time he was arraigned before a United States Commissioner. Detective-Sergeant Crooke testified that he did not take appellant before a commissioner at 3:00 a. m. because he was not "aware that a United States Commissioner * * * is available at any time of the day or night to arraign defendants charged with a crime." (Tr. 64.)

Appellant took the stand during this pre-trial hearing.⁵ Appellant's counsel sought to suppress all of appellant's statements other than the initial threshold admission that he had killed his girl friend. During this hearing appellant testified that he did make such an admission. He initially denied, however, that Sergeant Brown ever gave him the PD-47 card to read (Tr. 79) but on cross-examination admitted that he did receive the card, but never read it (Tr. 79C-D). Appellant testified further that no one ever read the card to him and that when the officers asked him if he wanted a lawyer he thought they meant his own "personal lawyer" (Tr. 83). Since appellant could not afford to pay for such a lawyer he said he didn't want one. Appellant denied that either officer ever told him that he could have a "free one" (Tr. 79-B). In essence, the main thrust of appellant's testimony was to contradict the officer's testimony while simultaneously asserting a claim that he did not understand what was happening.

After oral argument by both counsel the trial judge ruled that appellant's statements to Detective-Sergeant Crooke were admissible but that the PD-54 form and testimony regarding it were inadmissible. In explanation, the trial judge stated that the questioning at the Twelfth Precinct was not a violation of appellant's constitutional rights but that he should have been brought before a commissioner as soon as he indicated he didn't wish to discuss the matter any more. We affirm the trial judge's ruling.

I

Appellant's first allegation of error is that all statements made by him to Detective-Sergeant Crooke were inadmissible at trial because they were given in violation of appellant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). We recognize and certainly agree that

if * * * interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. (Citation omitted.)

384 U.S. at 475, 86 S.Ct. at 1628.

At the outset of our discussion we wish to reject, as did the trial judge, a proposition submerged in the murky waters that surround meaningful waivers. We are unable to accept the thesis that no one can ever intelligently waive an important constitutional right voluntarily or that no one who is reasonable or intelligent would ever commit a criminal act. A quick glance at the upper echelon of organized crime in this country should suffice to undercut the credence of the latter portion of this proposition. Thus, we conclude that, under the law today, it is possible for a person to waive his right to remain silent and to wish to voluntarily discuss the action that he had so recently taken which must have weighed so heavily on his mind.

Since it is possible, we must now look to see if appellant did meaningfully waive his right to counsel. At this point we note that this is a case, unlike Miranda, of a person entering a police station and, before the utterance of a word by the police, confessing to a murder. In fact, the Court in Miranda specifically stated that it did not

purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime (footnote omitted) * * *. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.⁶

We, of course, are unable to and do not endeavor to probe appellant's mind in an attempt to discover whether he made a meaningful waiver. Instead, we must apply an objective standard⁷ in determining the proper resolution of this issue. Appellant proffers no allegations of coercion by the police, he never repudiated his confession or altered the details thereof, and he did not make prior denials before confessing. In addition, appellant was not harassed or intensely interrogated as was the defendant in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964). Rather, the officer approached appellant and asked him if "he wanted to talk about it." Appellant answered all questions freely and easily, all the while observing but not objecting to, the officer taking notes. It was only at the conclusion of the discussion, unlike...