U.S. v. Barnes, 77-2097
| Decision Date | 20 August 1979 |
| Docket Number | No. 77-2097,77-2097 |
| Citation | 610 F.2d 888,197 U.S.App.D.C. 369 |
| Parties | UNITED STATES of America v. Bennie E. BARNES, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert P. Mosteller, Washington, D. C. (appointed by this Court) for appellant.
Charles L. Hall, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., and Michael W. Farrell, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.
Before BAZELON, Senior Circuit Judge, McGOWAN and ROBB, Circuit Judges.
Opinion for the Court filed by BAZELON, Senior Circuit Judge.
Appellant, Bennie E. Barnes, appeals the denial without a hearing of his petition to vacate his sentence under 28 U.S.C. § 2255 (1976). The question presented is whether "the files and records of the case conclusively show that the prisoner is entitled to no relief" 1 on the claim that his statements to the police were involuntary and should not have been admitted at his trial. We reverse and remand for a hearing.
Our review of the trial transcript and record in this case reveals the following:
Shortly after noon on Saturday, March 8, 1969, appellant returned home from work. Aside from a trip to the supermarket, he and his wife spent the afternoon at home, resting and drinking whiskey. In the late afternoon, they went shopping with Mrs. Barnes' niece, Dorothy Lee Blizzard, and a male friend, Harley Davis, stopping at least twice to buy liquor. The group returned to Mrs. Blizzard's apartment on 8th Street, N.W., to consume the food and liquor they had purchased. While Mrs. Barnes cooked, Davis and the appellant went briefly to the Barnes apartment to drink some beer. On their return, Barnes and his wife began to argue, and after Barnes slapped his wife, Davis forced him from the apartment. Later in the evening, appellant came back to the Blizzard apartment, apologized to Davis for the earlier dispute, spoke briefly with his wife, and left.
Barnes returned to the Blizzard apartment yet again after midnight, and, according to three witnesses, carried a plastic Clorox bottle under his jacket. He sat with Mrs. Barnes on a couch in the kitchen, where eight-year-old Wilhelmina Blizzard was also lying. After another argument began between the couple, Mrs. Barnes grabbed the Clorox bottle and smelled the contents. She said it contained gasoline, and threatened to call the police. According to Mrs. Barnes' statement on the day she died, appellant then poured the gasoline around her and threw a lighted match on the floor. Mrs. Barnes, who weighed over 250 pounds, stated that her husband held her in the fire; Barnes claimed that he tried to pull her out, but that she slipped and fell. Mrs. Barnes was finally dragged from the fire by Harley Davis, but not until she had received severe burns over 80 percent of her body. She died the following day. Barnes himself received second and third-degree burns on his hands and face, suffered smoke inhalation, and had difficulty seeing for a day after the fire.
At issue in this case are three statements that appellant made to the police after he emerged from the burning apartment. As Sergeant Layfield, the first policeman on the scene, approached the building, Mrs. Blizzard shouted to him that Barnes had set the fire. When Layfield asked Barnes if that were true, appellant replied, "Well, I will take the blame for it." The sergeant then said, Barnes responded, "Yes, I did, but it was an accident." 2 Barnes' second statement was made after he had been placed under arrest and had been turned over to Officer Tropf. As Tropf led Barnes from the apartment to the police car, Barnes said, 3 The final statement at issue occurred shortly after Barnes arrived at the police station. After his rights had been read to him twice, appellant told Officer Fuksa that his wife had picked up the Clorox bottle to throw at him, that he had attempted to kiss her, and that the bottle fell to the floor and accidentally ignited. 4
In August, 1970, appellant was found competent to stand trial after a sixty-day examination at St. Elizabeth's Hospital. The psychiatrist's report noted that Barnes had an I.Q. of 67, "which is in the defective range," and that tests showed "signs of organic brain syndrome illustrated (by) visual motor deficit resembling senility." 5 Although the hospital staff also said that appellant lacked "abstraction capabilities" and the ability to "integrate ideation," 6 the report concluded that there was no "causal connection" between appellant's retardation and the alleged offense. 7
At a hearing on January 18, 1971, 22 months after the fire, the district court denied appellant's motion to suppress his statements on the grounds that they had been obtained in violation of Miranda v. Arizona. 8 At no time during the pretrial hearing or the ensuing trial, however, did defense counsel challenge the statements as involuntarily made. After two days of testimony, the court, At the request of the prosecution and over defense objection, submitted to the jury the question of the voluntariness of Barnes' statements. 9 Barnes was found guilty of felony murder, first and second degree murder, and arson, and was sentenced to life imprisonment.
Barnes appealed his conviction In forma pauperis. Court-appointed counsel on appeal, who was not trial counsel, pressed the Miranda claim again; challenged Officer Tropf's testimony on the grounds that the policeman lost the notes he had taken at the time of arrest; charged that Mrs. Barnes' statements did not fall under the dying declaration exception to the hearsay rule; and claimed that the jury instruction on voluntariness was unfairly prejudicial because it unduly emphasized appellant's statements. This court rejected all of Barnes' claims and affirmed the conviction. 10
Appellant, acting Pro se, filed a § 2255 petition in April, 1973, on the same grounds raised in his appeal, adding only a claim of ineffective assistance of counsel. The district court denied that motion without a hearing, and this court denied leave to appeal In forma pauperis. 11 On November 3, 1976, Barnes filed the instant petition, this time with assistance from the Public Defender Service, directly disputing the voluntariness of his statements. The petition relied on several factors indicating that the statements were not voluntary: at the time they were made, Barnes was suffering from second and third-degree burns on his hands and face and had received no medical attention; 12 he had been drinking for twelve hours before the fire and consequently was intoxicated; 13 he was mentally retarded and educationally disadvantaged; 14 he had little previous experience with the law 15 and was not given his Miranda warnings until after he made the first two statements; and he was in shock from the fire and from seeing his wife seriously injured. 16
The district court rejected this petition without a hearing on the ground that Barnes presented "nothing new," stating: "(A)ll of the facts in support of his motion were before this Court during the initial proceedings and on petitioner's last Pro se motion, as well as before the jury and the Court of Appeals." 17 Upon appeal from the district court's denial of leave to proceed on appeal In forma pauperis, this court granted such leave. Appellant now argues that the district court erred in not according him a hearing. We agree.
At no time has any court considered appellant's claim of involuntariness. The pretrial hearing on defendant's motion to suppress focused exclusively on whether the Miranda warnings were required or given, with no reference whatsoever to the question of voluntariness. 18 No mention was made of any of the factors cited in the instant petition indicating that Barnes' statements may not have been "the product of a rational intellect and a free will." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). Similarly, the admission of Barnes' statements into evidence at trial, without more, cannot be construed as an implicit finding of voluntariness: "Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967). Nor can the instruction to the jury on voluntariness support the district court's ruling on this petition. Under Jackson v. Denno, the jury's verdict cannot be interpreted as a finding on the constitutional question of voluntariness, since such determinations can only be made by the trial judge. 19
The opinion by this court on direct appeal only discussed voluntariness as it related to appellant's contention that the jury instruction prejudicially directed attention to the statements. 20 The Government notes that this court, in rejecting Barnes' Miranda claim, characterized his remark to Officer Tropf as "an entirely voluntary statement." 21 That observation, however, was followed by the phrase, "since this police officer asked him no questions." The issue thus addressed was whether Barnes volunteered the remark, not whether the statement was voluntary in a constitutional sense. The opinion never discussed the claim that defendant's due process rights were violated by the admission of his allegedly involuntary statements. 22 The "files and records" of the case therefore do not reveal any prior adjudication of appellant's voluntariness claim, and the district court's denial of petitioner's § 2255 motion on that ground was erroneous.
The government contends that even if the district court ruling was in error, Barnes is precluded...
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