U.S. v. Johnson

• Decision Date: 24 March 1976
• Docket Number: No. 74-1198,74-1198
• Parties: UNITED STATES of America v. Joseph T. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 649

562 F.2d 649

183 U.S.App.D.C. 130

UNITED STATES of America v. Joseph T. JOHNSON, Appellant.

No. 74-1198.

United States Court of Appeals, District of Columbia Circuit.

Argued May 27, 1975.

Decided March 24, 1976.

Frederick H. Robinson, Jr., Washington, D.C., with whom John S. Nolan, Washington, D.C. (both appointed by this Court), were on the brief for appellant.

Edward C. McGuire, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin, and Eugene M. Propper, Asst. U. S. Attys., Washington, D.C., were on the brief for appellee.

Before BAZELON, Chief Judge, GEORGE EDWARDS, ^* Circuit Judge for the Sixth Circuit, and TAMM, Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

Opinion filed by Chief Judge BAZELON concurring in result.

EDWARDS, Circuit Judge:

This is an appeal from denial of a petition to vacate sentence under 28 U.S.C. § 2255 (1970). The District Judge who conducted a brief and nonevidentiary hearing on this motion denied it on the basis of the record of the jury trial at which he had presided. At that trial appellant had been found guilty of second degree murder in the 1967 stabbing death of his wife and had been sentenced to from seven years to life imprisonment. This conviction had been affirmed On appeal from denial of the § 2255 motion appellant contends that statements taken from him at the police station without Miranda warnings should have been excluded on constitutional grounds, even though his counsel at the trial did not object to them. Appellant also contends that the record does not conclusively show a deliberate bypass of orderly federal procedure as apparently found by the District Judge who denied the motion.

without opinion by this court (D.C. Cir. #24,225, decided April 22, 1971).

Neither of these issues had been presented at trial or on direct appeal. To decide them we need a somewhat detailed statement of facts.

Appellant's version of the events on the night of the murder was given only to the police and came into the trial record only by police testimony since he did not testify before the jury. It was that he and his wife separated during the evening in question, he going home earlier, and then after a phone call from her around midnight, that he set out to meet her at the bus stop and found her there stabbed and dying. He and a passer-by took her to the hospital where police reported and took him and the good samaritan to the station house.

Appellant and the passer-by were both questioned without Miranda warnings. Appellant gave an exculpatory statement indicating that his wife had been fatally wounded when he first met her at the bus stop. Appellant, who had never been told he was under arrest, was released and driven home by the police in the early morning hours. He was questioned again the next day at his apartment to which appellant admitted the police. The police found the deceased wife's umbrella at the house. This was apparently inconsistent with appellant's version of the facts since she had had the umbrella with her earlier in the evening. At this point appellant was arrested.

At the trial two witnesses who lived in the same apartment building as appellant testified to hearing noises on the night in question which could have come from appellant's apartment. One witness testified to a terrifying scream and then the noise of two persons running, and later the noise of one person running back. The deceased wife's brother testified to finding her injured one night some months before the murder after an altercation during which, appellant told him, he had hit her over the head with a chair. This episode had led to some months of separation which ended with reconciliation just a few weeks before the murder.

There was no eye witness of the murder who testified. The prosecution succeeded over vigorous objection in introducing the umbrella referred to above and police testimony about where it was found and about the absence of any knives in appellant's apartment. This latter evidence was arguably relevant both because appellant's wife died from a stab wound in her neck and because her sister testified that she had given the Johnsons a set of steak knives. A motion to suppress physical evidence seized by the police occasioned a hearing outside the presence of the jury. This was the only occasion on which appellant testified. After listening to appellant's version and that of the police about their entrance to appellant's apartment, the District Judge found that the police had entered with appellant's voluntary consent and admitted the evidence.

On direct appeal, as noted earlier, the validity of this last decision was the primary issue presented and this court affirmed without opinion. No issue was presented on direct appeal concerning police testimony about appellant's statements at the station house on the night of the murder. But in the motion to vacate sentence and on the present appeal, these statements and their admission at trial are the sole focus.

Attached to this opinion as Appendices A, B and C are A) the transcript of the hearing on the § 2255 motion; B) the transcript of the trial court's sua sponte inquiry into the admissibility of appellant's statement to the police; and C) the transcript of the statements as related by the police.

Our reading of Appendix C indicates to us that appellant's statements to the police as quoted by them were clearly intended to be purely exculpatory.

Our reading of Appendix B indicates that the District Judge entirely sua sponte raised and insisted on exploring the voluntariness of these statements and the question of whether they were barred by reason of appellant being "in custody" at the time. They were made without his having been given Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). At the hearing on this issue initiated by the District Judge, appellant's attorney made no effort at all to contest the admissibility of appellant's written statement or to contest police evidence tending to establish that the statements were voluntary on appellant's part and were given when he was not in custody. Appellant's counsel indicated approval of the District Judge's decision that the statements were not made in custody and were admissible. Appellant was present during all these proceedings and offered no objection.

Our reading of Appendix A (and this record) convinces us that the District Judge had a vivid memory of this case ¹ and correctly concluded from its record that appellant had "deliberately bypassed the orderly procedure" of the federal courts within the meaning of Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837, 868 (1963), and Henry v. Mississippi, 379 U.S. 443, 451-52, 85 S.Ct. 564, 569, 13 L.Ed.2d 408, 415 (1965).

In Kaufman v. United States the Supreme Court said:

Where a trial or appellate court has determined the federal prisoner's claim, discretion may in a proper case be exercised against the grant of a § 2255 hearing. Section 2255 provides for hearing "(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), we announced standards governing the determination whether a hearing should be ordered in the case of a successive motion under § 2255. Similarly, where the trial or appellate court has had a "say" on a federal prisoner's claim, it may be open to the § 2255 court to determine that on the basis of the motion, files, and records, "the prisoner is entitled to no relief." See Thornton v. United States, 125 U.S.App.D.C. 114, 125, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright, J.).

Furthermore, the § 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal e.g., motion to suppress under Fed.Rule Crim.Proc. 41(e) or appeal under Fed.Rule App.Proc. 4(b). Fay v. Noia, supra, (372 U.S.) n.3, at 438 (83 S.Ct. 822 at 848). Henry v. Mississippi, supra, (379 U.S.) n.3, at 451-452 (85 S.Ct. 564 at 569-570, 13 L.Ed.2d at 415).

Kaufman v. United States, 394 U.S. 217, 227 n.8, 89 S.Ct. 1068, 1074, 22 L.Ed.2d 227, 238 (1969).

We believe that the District Court in this case offered appellant full opportunity to object to admission of the now disputed statements. We also believe that the District Judge was right when at the § 2255 hearing he said that appellant's failure to object or present evidence was "a calculated piece of business." Even appellant's counsel at the § 2255 hearing recognized that "for strategic reasons Mr. Williams (appellant's trial counsel) wanted that statement in." Although he did not use the words, we believe his § 2255 disposition represented his finding of "a deliberate bypassing attributable to the defendant." United States v. Haywood, 150 U.S.App.D.C. 247, 464 F.2d 756 (1972).

We recognize that appellant relies strongly upon the Haywood case just cited as Appellant, in his pro se Section 2255 motion, alleges that he specifically requested trial counsel to file a motion to suppress the evidence, that just prior to trial a further request was made that since counsel had not filed the motion to suppress, he secure for the court's approval a copy of the search warrant. Appellant further alleged that at trial, counsel failed to determine for the record the circumstances under which the evidence, which was introduced at trial, was obtained by the search, and that he did not cross-examine any witness who testified regarding the evidence, or object to the statement of the prosecutor that the search was authorized by a legal warrant. These unresolved allegations are quite material to the question whether there was a deliberate bypassing, which could be attributed to...