United States ex rel. Cheeks v. Russell

• Decision Date: 26 March 1970
• Docket Number: No. 17609.,17609.
• Citation: 424 F.2d 647
• Parties: UNITED STATES of America ex rel. Bernard CHEEKS, H-4596, Appellant, v. Harry RUSSELL, Warden of S. C. I. H.
• Court: U.S. Court of Appeals — Third Circuit

424 F.2d 647 (1970)

UNITED STATES of America ex rel. Bernard CHEEKS, H-4596, Appellant, v. Harry RUSSELL, Warden of S. C. I. H.

No. 17609.

United States Court of Appeals, Third Circuit.

Argued April 24, 1969.

Submitted on Briefs September 4, 1969.

Decided March 26, 1970.

John W. Packel, Philadelphia, Pa., for appellant.

Joseph J. Musto, Asst. Dist. Atty. (James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, FREEDMAN and STAHL,^* Circuit Judges.

OPINION OF THE COURT

BIGGS, Circuit Judge.

The appellant Cheeks was convicted of stabbing Jo Henry Howell in the course of a robbery committed on October 11, 1963 in Philadelphia. Howell died seven days later.¹ Cheeks had among his alleged accomplices Beard,² Smith and Dyson. These three accomplices were taken into custody by the Philadelphia police on or about October 24 and Cheeks and they were questioned. What later transpired and certain legal conclusions based on those operative facts are succinctly set out in the opinion of Mr. Justice Roberts in Commonwealth v. Cheeks, 429 Pa. 89, 97-98, 239 A.2d 793, 797-798 (1968), as follows:

"During the course of appellant\'s Checks\' trial, the Commonwealth read into the record a confession given by one Craig Smith who was not called to testify. The confession implicated Cheeks. A similar confession of William Dyson, implicating appellant, was referred to,³ although not actually read, by a detective whose testimony was used to rebut that of a certain defense witness. The third confession, given by Joseph * * * Beard, was also used by the Commonwealth. But * * * Beard was called to the stand, and so the use of his confession cannot support appellant\'s Pointer⁴ claim. As for the confessions of Smith and Dyson (two men who were not present at trial), it is clear that their use would violate the sixth amendment right of a defendant to confront his accusers, provided these confessions were in fact used in lieu of the two men themselves, and were introduced as the `testimony\' of two witnesses to the crime. However the Commonwealth asserts that these statements were actually introduced as the statements of the defendant, on the theory that Cheeks\' own confession incorporated the confessions of his three accomplices. We decided in Cheeks\' direct appeal that his confession was properly introduced. Thus, two issues must be resolved: whether that confession adopts the statements of Smith and Dyson; and if it does so adopt, whether the use of the accomplices\' confessions nevertheless runs afoul of the sixth amendment.

"Part of appellant\'s confession, read into the record by Detective Seifert, consisted of the following:

"`Q. You were shown the statements of Craig Stephen Smith, Joseph Baird and William Dyson, are they correct in what they said?

A. Yes, sir, all except Joe Baird\'s statement that I tried to give him the bloody knife with the pearl handle.⁵ That was wrong.

Q. What do you think of Craig Stephen Smith\'s statement?

A. It is true.\'"⁶,⁷

Cheeks' counsel made objections to the foregoing evidence.⁸ Cheeks took the stand on his own behalf and denied that he made the above quoted statements to the detective. He stated the following upon questioning by his counsel:

"Q. Now you signed a statement in which you said * * *. Now, you signed that didn\'t you?

A. No, sir — I signed it but —

Q. That is your signature at the bottom, isn\'t it?

A. Yes, sir.

Q. Is it true?

A. No, sir.

Q. Well, why did you sign it?

A. They told me that if I did not sign this statement and admit that I stabbed the man they were going to lock Ruby and her mother up and the State would probably take Ruby\'s baby⁹ away after it was born.

Q. Who told you that?

A. The detective."

The trial court charged the jury as follows on the issue of the voluntariness of Cheeks' confession:

"Now, a confession, Members of the Jury, is a voluntary admission of guilt for an offense charged. It is the strongest evidence of guilt when, and only when, it is voluntary, because one will not voluntarily jeopardize his life or his liberty by confession to an untruth in the absence of some extraordinary motive.

"The law is zealous to preserve the right of the accused. If a confession is obtained by coercive measures, such a confession would violate due process. It is the Court\'s duty, in the first instance, to determine whether there is sufficient evidence of the voluntary nature of the confession. This point is raised when the Commonwealth offers this confession and asks that it be read. The defendant may then cross-examine the person who took the confession, and if he is unsuccessful in showing that the confession was not properly secured, the Court allows the confession to be read. And that is what happened in this case. But a confession so admitted into evidence is not conclusive as to whether it is voluntary or not. All that was determined is that is a question for you, the Jury.

"To determine so, in this case, Members of the Jury, it becomes your important duty to pass upon the validity of the confession that was read and the admission testified to by defendant. Now, let me give you some instructions in this connection so that you may be helped in your deliberations on this very vital phase of this case. Whether a confession is voluntary depends largely upon the facts of the individual case. The sex, the age, the disposition, the education, experience, and previous training of the accused, his mental qualities, his physical health, and his surroundings are all matters to be considered by the Jury in determining whether or not the confession was voluntary.

"Prolonged interrogation is not in itself a ground for invalidating a confession, nor is it fundamentally unfair unless the interrogation was so long in duration as to amount to mental and physical coercion and duress.

"Here, the confession, while signed, is denied and claimed to be involuntary. If you believe that the defendant was coerced and compelled by reason of force and violence or threats, I have not heard anything, but again, for you to remember, with violence or threats except the statement we heard about Ruby and her mother, but all that is for you to determine; at any rate, they would not be under force or violence or threats or intimidations of any kind to make these statements, then they would not be his voluntary statements and you should ignore them, even if you believe them to be true. If you find that he made these statements voluntarily, as stated therein, then you will give them consideration and determine what is the real truth of the matter. You may believe, Members of the Jury, all or parts or none of the statement. So, in considering the signed statement, you must first determine whether such statement was freely and voluntarily made, without any inducement or expectation of any promise, benefit or fear of any threatened injury.

1 "In considering whether the defendant\'s oral or written statements were voluntary, the Jury should give heed to any evidence, and all evidence, which has been presented and which you may believe had induced the defendant to make such a statement. You will give consideration as to whether or not the defendant understood the questions asked, and whether the witness understood the answers and accurately recollected and reported them. Also, consider any evidence that may have been presented to you which you may believe might have induced the defendant to make such statements."¹⁰,¹¹

I.

In his oral argument and original brief filed in this case Cheeks took the position that the use of extrajudicial confessions "by nontestifying declarants" constituted "an almost ultimate violation of the hearsay rule and the right to cross-examine and confront witnesses under Pointer v. Texas," note 4, supra, and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Citing the decision of this court by Chief Judge Hastie in United States ex rel. Staino v. Brierly, 387 F.2d 597 (3 Cir. 1967), Cheeks insists that the confessions allegedly adopted by him were superfluous, merely reiterating the facts allegedly admitted by him in his confession, and that therefore the minds of the jury must have been overborne. He asserts that the danger is that alluded to by Judge Hastie in Staino "magnified by three".¹² "What jury," say Cheeks' counsel, "even if it believed Cheeks in his testimony that his statement was coerced and false, could help but be impressed by the three sic¹³ inadmissible but incriminating statements of" Dyson, Smith and Beard? But if Cheeks adopted his accomplices' confessions in his own confession, as testified to by Detective Seifert and as found by Mr. Justice Roberts in Commonwealth v. Cheeks, supra, Cheeks' confession falls neither within the common law hearsay prohibition nor within that of Pointer. If the jury concluded the confession was voluntary it had the right to consider the adoptive confessions. The present writer cannot agree that these contentions of Cheeks' counsel are valid though I will endeavor to answer Cheeks' counsel's rhetorical question under heading "III" of this opinion.

II.

An important underlying issue in this case must be discussed and determined. Beard's signed confession was marked "C-8" for identification, was admitted in evidence¹⁴ and was read to the jury.¹⁵ Beard was cross-examined extensively.¹⁶ The prosecutor re-examined him to show that his statement was freely given and that he understood its contents.¹⁷ This preceded the Jackson v. Denno hearing.¹⁸ Because Beard testified at the trial and not only was available for cross-examination but was in fact cross-examined, Beard's confession presents no issue under Pointer v. Texas, supra, and Bruton v. United States, supra. But let us examine the status of the other confessions.

Immediately prior to the Jackson v....