Skiskowski v. United States

• Citation: 158 F.2d 177,81 US App. DC 274
• Decision Date: 21 October 1946
• Docket Number: No. 9153,9224.,9153
• Parties: SKISKOWSKI v. UNITED STATES. QUINN v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

81 US App. DC 274, 158 F.2d 177 (1946)

SKISKOWSKI v. UNITED STATES.

QUINN v. SAME.

Nos. 9153, 9224.

United States Court of Appeals District of Columbia.

Argued May 27, 1946.

Decided October 21, 1946.

Writ of Certiorari Denied February 17, 1947.

Mr. Harry T. Whelan, of Washington, D. C., (appointed by District Court) for appellant Skiskowski.

Mr. James K. Hughes, of Washington, D. C., for appellant Quinn.

Mr. Sidney S. Sachs, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney and John W. Fihelly, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and CLARK and WILBUR K. MILLER, Associate Justices.

Writ of Certiorari Denied February 17, 1947. See 67 S.Ct. 769.

CLARK, Associate Justice.

Appellants were convicted of assault with dangerous weapons while stealing money and property belonging to the National Bank of Washington. The indictment was brought under the Bank Robbery Statute, 12 U.S.C.A. § 588b.¹

The appellants were jointly indicted and tried together and the appeals were heard together in this court. At the trial the prosecution produced evidence to show that on the morning of March 30, 1945, two tellers from the National Bank of Washington were in the process of delivering a valise containing some $24,000 cash to Kann's Department Store located across the street from the bank. As the tellers walked toward Kann's two men came up behind them. The teller carrying the valise was struck over the head with a piece of pipe wrapped in newspaper. One attacker held the second teller at bay with a revolver while the valise of money was taken by the other attacker and the two then fled to a waiting automobile driven by a third participant in the crime,

Evidence was introduced to show that appellant Quinn had visited a man named Joe Boley (alias Joe DiLeo) in Washington early in 1945. During the time of Quinn's visit to Boley, appellant Skiskowski and one Joe McCann came to Washington and the four men planned the robbery. Evidence was introduced to show that McCann and Quinn had attacked the bank tellers and that Skiskowski had driven the automobile. Shortly after the commission of the crime the three men separated, and later the same day met at Boley's apartment for a first division of the loot. It was testified that the three active participants met later in New Jersey for an additional split of the stolen money.

On April 1, 1945, officers from the Newark Sheriff's office attempted to apprehend Skiskowski. He fled, leaving behind in his automobile $4,700 cash, $200 of which was in $1.00 bills serially identified as a part of the money taken from the valise carried by the tellers. A piece of lead pipe wrapped in newspaper was also found in the car.

On April 20, 1945, McCann and Quinn were accosted by federal officers in New York City. A shooting encounter followed which ended in the death of McCann and the wounding of Quinn, who escaped. Later, on May 22, 1945, Quinn was apprehended in New York.

Skiskowski was arrested in the room of a girl friend in Amityville, New York, on May 10, 1945. He was taken to New York City in the afternoon of May 10, and there photographed, fingerprinted, given a physical examination and questioned until about 10:30 in the evening. On May 11, he was arraigned before a United States Commissioner on a warrant for the robbery of the National Bank of Washington, which was non est in the District of Columbia.²

I.

We shall first examine the points raised by Skiskowski on his appeal. They are: "(1) The admission in evidence of an alleged confession which was not voluntarily made. (2) Appellant was not effectively represented by counsel at his trial. (3) The admission in evidence of prejudicial testimony concerning the past reputation of appellant."

To review the first point we turn to the conditions under which the confession was made. It is urged in behalf of the appellant that his confession came only after several days of intensive questioning and at a time when he was ill, "both mentally and physically, and feared his girl friend would be charged with a crime." The evidence does not support this contention.

Skiskowski was questioned first on May 10, the day of his arrest. The duration of the questioning was not more than seven hours, and did not extend beyond 10:30 p.m. On the following day, May 11, he was again questioned for about seven hours, this interrogation being interrupted by his appearance before the United States Commissioner, and a lunch period. On May 12 he was questioned from four to five hours. May 13 was Sunday and he was not questioned. On May 14 he was again questioned for several hours and after being told, as he had been on previous occasions by the FBI agents, that they could give him no assurances as to the chances of his girl friend being prosecuted, he asked to see the United States Attorney. He was taken before the United States Attorney and there again expressed his interest in receiving some assurance that his girl friend would not be prosecuted. Without making any promises or offering any inducements, the U. S. Attorney restated the agents' request that he tell them the truth. On this same day his girl friend, who at the time of his arrest in her room had been too ill to be moved, came voluntarily to the New York office of the FBI and was permitted to talk with Skiskowski in the presence of the agents. Also in his presence, the agents offered to obtain a hotel reservation for her in New York City provided that she paid for her room. There is nothing in the record to indicate that during this period any threats, inducements, promises, or other means were applied to the defendant in an effort to extract a confession. It may be fairly assumed that from the tenor of the conversation in his presence Skiskowski concluded that his girl friend had not been arrested. This may have been an item of some mental relief, but it is not, in our opinion, evidence that he was tricked into confessing.³ Later, on May 14, he signed the written statement now challenged as involuntary.

It is not argued that appellant Skiskowski was subjected to any physical abuse or torment during the periods of interrogation. It was not shown that he was in fact physically ill, and the record discloses no evidence from which it can reasonably be inferred that he was mentally exhausted from extended and harassing question periods.⁴

As to Skiskowski's contention that his defense counsel was not given an adequate opportunity to prepare for trial, it appears that at the commencement of the trial, counsel of record informed the court that this defendant desired the court to appoint another attorney for him. The court then appointed an experienced trial lawyer, but defendant's original counsel remained as a aid to the defense throughout the trial. At the time of appointing counsel the court adjourned for a brief time and also informed defense counsel that they might request additional time if desired. No request was made, and the case went to trial that day. The government completed its case at about 1:30 p.m. on the following day, which was Thursday, and as it developed, the defense was not required to put on its evidence until the next Monday. In these circumstances we think that not only was the defendant represented by competent counsel, but also, that his attorney was not prejudiced in preparation by reason of time limitations.

The evidence which appellant Skiskowski, in his third point, urges was prejudicial as going to show past reputation came in as a response to a question asked of a police officer. The officer was asked how long he had known the defendant and he answered, "I have studied this picture about one year." Upon objection by the defense, the jury was instructed to disregard the statement. Later Skiskowski took the stand and on cross-examination was shown to have twice been convicted of crimes. In this setting, we cannot agree that the testimony was so prejudicial as to demand reversal. If not entirely cured by the instruction, any error which persisted was reduced to insignificance by the defendant's own subsequent testimony.

As to Skiskowski, therefore, the judgment must be affirmed.

II.

Appellant Quinn assigns error with respect to: (a) The admission of the alleged confession by Skiskowski, made out of his, Quinn's presence; (b) the admission in evidence of a statement by a man named Boley, also made out of his presence; (c) the trial court's refusal to grant his motion for a directed verdict; (d) the court's charge to the jury.

As for the use of Skiskowski's confession the record shows clearly that at the time it was offered Quinn's counsel made the point, "It is admissible only as against the defendant, Skiskowski." To this the court replied, "That is correct. If any other defendant's name is mentioned in connection with it it would still be only evidence against defendant who is making it. The jury will understand." This was said not only in the presence of the jury, but again, in the charge the court reiterated the point with great care. We think the matter was correctly handled by the trial court and resulted in no reversible prejudice to the defendant.⁵

The statement made by Boley, which appellant Quinn contends was erroneously admitted against him, was used during the testimony of an FBI agent who testified as to an interrogation he made of Quinn. The agent was permitted to testify that he confronted Quinn with a statement made by Boley, out of Quinn's presence. At the time the prosecution sought to introduce this testimony it was objected to by the defense on the grounds of "hearsay." Defense counsel pointed out that not only had Boley's statement been made out of Quinn's presence, but also, that Boley was not on trial or available for cross-examination. The objection was overruled. The trial court permitted the agent to testify as to this...