State v. Winsett

• Decision Date: 02 February 1968
• Citation: 238 A.2d 821
• Parties: The STATE of Delaware, v. Thomas H. WINSETT, Wilbert A. Weekley, and Edward J. Mayerhofer.
• Court: Delaware Superior Court

Page 821

238 A.2d 821

The STATE of Delaware, v. Thomas H. WINSETT, Wilbert A. Weekley, and Edward J. Mayerhofer.

Superior Court of Delaware, New Castle County.

Feb. 2, 1968.

Jay H. Conner, and Jerome O. Herlihy, Deputy Attys. Gen., for the state.

H. James Conaway, Jr., Wilmington, for defendant, Thomas H. Winsett.

C. Waggaman Berl, Jr., Wilmington, for defendant, Wilbert A. Weekley.

Arthur J. Sullivan, Wilmington, for defendant, Edward J. Mayerhofer.

DUFFY, Chancellor: ¹

Thomas H. Winsett, Wilbert A. Weekley and Edward J. Mayerhofer were convicted of crimes arising out of the death of Robert A. Paris, a State of Delaware police officer, on October 17, 1963. Winsett was convicted of murder in the first degree with a recommendation of mercy, and Weekley and Mayerhofer were convicted as accomplices. Thereafter, defendants filed post-trial motions, all of which were denied. 205 A.2d 510 (1964). ² The convictions and the ruling on the motions were affirmed by the Delaware Supreme Court. 222 A.2d 781 (1966).

Acting under Rule 33, Del.C.Ann., and relying on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), Weekley moved for a new trial or alternatively for a special hearing on the question of the voluntariness of certain statements made by him and admitted into evidence. After briefing and argument the Court granted the motion and ordered such a special hearing. Del. 230 A.2d 777 (1967); on application, similar relief was given to Winsett and Mayerhofer. A hearing was held on June 29, 1967, after which the issues were briefed by counsel and argued on November 2. This is the decision thereon.

A.

The sole issue now to be decided is the voluntariness, or lack thereof, of statements made by each defendant and admitted into evidence at trial against the defendant who gave them. This is required because, as I have said previously, the record does 'not contain the express determination * * * as to voluntariness which I believe Jackson requires.' 230 A.2d 780. It is necessary to keep this limited scope in mind because defendants, ranging far and wide in their briefs and arguments, attempt to renew their attack on the voluntariness of the statements as a matter of law, a contention which they made before and lost both here and in the Supreme Court. 205 A.2d 524 and 222 A.2d 787. Hence the rule of the case, affirmed by the Supreme Court, is that the statements are not inadmissible as a matter of law under Federal and State decisions. Compare Jackson v. Denno, supra. For this reason I do not regard myself as free to re-examine that question, and such decisions as State v. Dekoenigswarter, Del., 177 A.2d 344 (1962) and Beecher v. State of Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967), are relevant only to the extent that they help fix standards for determining voluntariness.

The distinction thus made is critical to an understanding of the case as it is now before the Court. In the logical order of things the motions and the issue they submit seem out of season, but the chronology merely points up the impact which decisions of the United States Supreme Court have had on the administration of justice in a case the trial of which began before such decisions were known or announced. The trial of this case began with a three-day Voir dire hearing on June 3, 1964, all of which was directed to the admissibility of the statements. The ruling admitting the statements was made on June 15, 1964, and that was before the Supreme Court decided Jackson, supra; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), and other related rulings on which defendants here rely. And the present Rule 33 motions, filed almost three years after trial, focus on a narrow but now critical facet of the trial itself: independent findings of fact as to the voluntariness of the statements.

B.

For present purposes, the record consists of:

(1) The preliminary hearing before Magistrate Peden on November 1, 1963;

(2) The hearing before Judge Storey on December 12, 13, 16, 17, 1963;

(3) The Voir dire hearing before me on June 3, 4, 5, 1964;

(4) The trial transcript covering the period June 8 to June 24, 1964;

(5) The hearing conducted on June 29, 1967 with respect to voluntariness.

I am not going to analyze this record. I have reviewed it and considered it together with the briefs and arguments of counsel.

C.

To be voluntary, a statement, written or oral, must have been given without duress or coercion. It must have been given free of any promises or threats by others. A statement which was prompted by mental or physical coercion, or by duress or intimidation, is not voluntary because it was not the product of a free will. Cf. State v. Winsett, Del., 205 A.2d 510, 520 (1964).

The question in each case is whether defendant's will was 'overborne' at the time he made the statement. Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963.) If in fact defendant's will was overborne, or if the statement was not the product of a rational and intelligent free will, it was not voluntarily made because it was coerced. Payne v. Arkansas, 356 U.S. 560, 566, 78 S.Ct. 844, 2 L.Ed.2d 975, 980 (1958). Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The judgment must be based on the 'totality of the circumstances.' Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Factors which bear on these circumstances include the following: defendant's age and mental condition (whether he was 'dull,' for example), where he was denied a hearing before a magistrate, whether he was advised of his right to remain silent or his right to counsel, ³ whether he was held incommunicado and if so how long, whether he was denied food for long periods, whether there were any threats of mob violence, the legality of his arrest, Payne v. State of Arkansas, supra; defendant's educational background and experience, his emotional stability or lack thereof, his record as to former crimes, whether the police used subterfuge in obtaining the statement, whether the statement was composed by a police officer, whether defendant had the aid of counsel or relatives or friends, whether there was prolonged police questioning of defendant. Ann.: Admissibility of Confession, 4 L.Ed.2d 1833.

D.

Defendants contend that they were hungry, wet, cold, fatigued and frightened. They say that they were 'on the run' and in hiding for approximately thirty-six hours and knew that they were being sought for a homicide in which a policeman was killed. And they point out that they were taken at gunpoint by a police posse , armed with shotguns, rifles and pistols. Defendants argue that it is against this background that the statements were made and that these are significant factors which show them to be involuntary.

Of course the coercion of a statement at gunpoint from a cold, hungry, frightened person is anathema to any notion of justice or fairness and the result is inadmissible because it violates both the Fifth and Fourteenth Amendments. But does that adequately and completely describe this case? I turn now to the evidence and the law to be applied to it.

(1)

The circumstances of arrest are vital to an understanding of what took place, and this requires a consideration of certain legal principles applicable at that time.

The New York Court of Appeals recently discussed these in a case not unlike this one in significant respects. People v. Hill, 17 N.Y.2d 185, 269 N.Y.S.2d 422, 216 N.E.2d 588 (1966). That case, like this one, involved the first Huntley hearing. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 176 (1965). The Court there was called upon to consider statements made by a defendant while the police were using force to arrest him. The Court said:

'Although the issue is one of first impression in this State, courts of other jurisdictions have held that the use of reasonable force in subduing a defendant or in effecting his arrest does not impair the voluntariness of a statement made by him during his subjection or render such statement inadmissible. (See, e.g., People v. Burwell, 44 Cal.2d 16, 30--31, 279 P.2d 744, cert. den. 349 U.S. 936, 75 S.Ct. 788, 99 L.Ed. 1265; Anderson v. State, 133 Wis. 601, 114 N.W. 112.)'

The rationale to which the Court pointed in distinguishing 'apprehension' situations from backroom interrogation in a police station is illustrated by its reference to U.S. Supreme Court opinions. Thus:

'Confessions which are involuntary are inadmissible 'not because (they) are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law' and violate procedural standards of due process. (Rogers v. Richmond, 365 U.S. 534, 540--541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760; see Spano v. People of State of New York, 360 U.S. 315, 320--321, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; Watts v. State of Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 93 L.Ed. 1801.)'

The Court went on to discuss the relationship between force used to make an arrest and statements given thereafter by the accused:

'Nor does the use of force to accomplish the defendant's arrest taint the incriminating statements which were subsequently given to the police and the district attorney at the station house. (Citations omitted.)'

I adopt as Delaware law the conclusions of the New York Court of Appeals that (a) the use of reasonable force in effecting an arrest does not in itself impair the voluntariness of a statement made by a defendant during his subjudgation or thereby render such statement inadmissible; and (b) the use of such force does not necessarily taint an...