United States v. Bernett

• Decision Date: 10 January 1974
• Docket Number: No. 71-1465.,71-1465.
• Citation: 495 F.2d 943
• Parties: UNITED STATES of America v. James BERNETT, also known as James Barnett, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

495 F.2d 943 (1974)

UNITED STATES of America v. James BERNETT, also known as James Barnett, Appellant.

No. 71-1465.

United States Court of Appeals, District of Columbia Circuit.

Argued June 15, 1972.

Decided January 10, 1974.

Rehearing Denied March 20, 1974.

James M. Kefauver, Washington, D. C. (appointed by this Court) for appellant.

James F. Flanagan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and John Ellsworth Stein, Asst. U. S. Attys., at the time the brief was filed, were on the brief, for appellee. Thomas A. Flannery, U. S. Atty. at the time the record was filed, also entered an appearance for appellee.

Before ROBINSON and WILKEY, Circuit Judges, and JAMESON,^* Senior United States District Judge for the District of Montana.

PER CURIAM:

Judge Robinson files an opinion in Parts I, II, IV and V of which Judge Wilkey and Judge Jameson concur. Judge Wilkey files an opinion in which Judge Jameson concurs, Judge Robinson dissenting for the reasons stated in Part III of his opinion. Thus Parts I, II, IV and V of Judge Robinson's opinion and Judge Wilkey's opinion together constitute the opinion of the court. The judgment of conviction appealed from is

Affirmed.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal is taken by James Bernett from his conviction of manslaughter¹ following a two-day trial. It raises two claims of error stemming from the District Court's denial of a motion to suppress, on grounds of involuntariness, an inculpatory oral admission which Bernett made to the police immediately prior to his arrest. The first is that the court's consideration of the voluntariness issue did not adequately safeguard Bernett's due process rights. The second is that even if the admission were voluntary, the failure of the court to charge the jury concerning the weight that might be given to it amounted to reversible error.

As to Bernett's first contention, my colleagues conclude that the admission was made in a noncustodial setting and was, for that reason, voluntary. That position is set forth in Judge Wilkey's opinion and is, of course, this court's decision on that phase of the appeal. My own examination of the record compels me to conclude that in evaluating the challenged statement, the District Court fell short of the requirement of Sims v. Georgia² that determinations favorable to voluntariness appear "with unmistakable clarity;"³ and since I am uncertain as to how the District Court resolved facts bearing critically on the issue, I would remand the case for explicit findings on the voluntariness of the questioned admission, and for a new trial in the event that it is found to have been involuntarily made.⁴ As to Bernett's second contention, we conclude unanimously that the omission of the instruction was error but that, viewed in context, the error was nonprejudicial.⁵

My opinion is in five sections. Part I presents a summary of the evidence introduced at trial, including the circumstances surrounding the admission under attack. Part II reviews the pretrial suppression hearing on the voluntariness issue. Part III addresses the voluntariness issue, and is a dissenting view to the court's position. In Part III I outline the relevant case law, explain how I think it should have borne on the voluntariness determination, and discuss the Government's charge that the error complained of in that regard was harmless. Part IV treats the court's failure to charge the jury on the weight it could accord the admission, and expresses our unanimous decision. Part V summarizes the court's holdings.

I. FACTUAL BACKGROUND

Despite gaps and contradictions in the testimony adduced by the parties at trial, the basic facts as to what occurred on the day of the crime can be reconstructed and summarized. The victim of the homicide of which Bernett was found guilty was one Theodore Nixon, who with Bernett, the latter's commonlaw wife, Harriet Smith, and Ben O. Smith (no relation to Harriet Smith) shared a basement apartment at 1441 Euclid Street, Northwest, in the District of Columbia. On the morning of the homicide, the four awoke and began drinking, continuing until they had consumed their available supply of alcohol. Around noon they retired to sleep off the effects of the drinking. Nixon and Ben Smith slept on couches in the living room; Bernett and Ms. Smith went to the bedroom they shared in the back of the apartment. Some time later Bernett left the apartment and when he returned he assumed his role in the fatal episode.

At trial, Bernett gave the jury his version of what occurred.⁶ When he got back to the apartment, he discovered Nixon sitting on his couch beside Ms. Smith, his hand underneath her dress. Bernett became angry and argued with her; she came after him with a bed slat, which he took away from her, and then with a knife. He slapped her and she dropped the knife and ran out of the apartment.

Thereupon, Bernett turned his attention to Nixon, whom he accused first of stealing some of his money the week before, and then of stealing his wife. A quarrel ensued and as Bernett turned and walked over toward the couch where Ben Smith was still asleep, Nixon, who was in a thigh-high cast because of a broken leg, hit him with one of his crutches.⁷ Bernett grabbed a nearby ashtray stand and struck Nixon with it. He then returned to Ben Smith's sofa, wakened Smith, borrowed five dollars from him and left the apartment.

Ben Smith testified that Bernett had borrowed the five dollars before the four went to sleep, and that he did not wake up until about 4:00 o'clock in the afternoon when Roscoe Moore, a friend, shook him and asked him for some wine. Smith called to Nixon but received no reply; observing blood on the latter's face, Smith summoned an ambulance and the police. Upon their arrival the police discovered that Nixon was dead, and the coroner's report subsequently revealed that he died from a skull fracture, apparently the result of being struck with the ashtray stand, which lay broken near the couch where the body was found. Smith stated that Ms. Smith was present when he was awakened by Moore and that she had a bruise on her face.

After leaving the apartment following his fight with the deceased, Bernett went to a club where he spent the next two hours drinking. He was found there around 6:00 o'clock by his nephew's wife, Eartha L. Clark, and his sister, Josephine Battles. Ms. Clark told Bernett that the police were looking for him in connection with a homicide on Euclid Street, and tried to talk him into turning himself in. After drinking another glass of whiskey, he agreed to accompany the two women to Ms. Clark's apartment.

Between 7:00 o'clock and midnight Bernett remained at the apartment, drinking the entire time, for, in the words of Ms. Clark, "we had to give him a lot of whiskey to keep him there, because otherwise he was going to leave." According to Ms. Clark, Bernett gave them essentially the same version of his altercation with the deceased that he later advanced at trial.⁸ Ms. Clark had called the police shortly after bringing Bernett to her apartment, but there was no response until around midnight when Metropolitan Police Officer Ronald L. Schleig arrived after receiving a radiocast to investigate.

Officer Schleig was met by Ms. Clark outside her apartment, and she explained to him that a man inside was wanted for homicide. The officer accompanied Ms. Clark and she pointed out Bernett, who was seated on the sofa. When asked his name, Bernett blurted out "Jimmy Bernett. I know the police are looking for me. I killed a man at 1441 Euclid Street."⁹ Officer Schleig testified that at the time Bernett was drunk and that his speech was slurred.

Bernett accepted the officer's invitation to accompany him to the stationhouse, and during the ride he continued to drink from a bottle of whiskey he had taken along. Once in his patrol car, Officer Schleig radioed headquarters to ascertain whether a homicide had occurred that day in the 1400 block of Euclid Street, and whether the police sought a man named Jimmy Bernett. When he received affirmative replies to both inquiries, he pulled the car over to the side of the street and gave Bernett the Miranda warnings.¹⁰

The warnings were repeated to Bernett by Officer Louis B. Richardson at the stationhouse. After signing a "consent" form, Bernett gave an oral statement to Officer Richardson, but when it was transcribed he refused to sign it. Officer Richardson testified that at the time these events took place, Bernett was drunk.

Bernett was subsequently indicted for murder in the second-degree,¹¹ and he requested a jury trial. Prior to trial his counsel moved to suppress both his admission to Officer Schleig at the apartment, and the statement to Officer Richardson at the stationhouse. The District Court denied the motion as to the first, and granted it as to the second. After four hours of deliberation, the jury returned a verdict of guilty on the lesser-included offense of manslaughter,¹² and Bernett was sentenced to imprisonment for five to fifteen years.¹³ This appeal followed.

II. THE PRETRIAL SUPPRESSION HEARING

As we earlier indicated, Bernett's trial attorney¹⁴ made a pretrial challenge to the admissibility of the statements made respectively to Officers Schleig and Richardson, asserting that these two admissions¹⁵ were involuntary and were given in violation of Miranda v. Arizona.¹⁶ While the transcript of the suppression hearing reflects a conscientious effort by the District Court to marshal and resolve the facts concerning the incriminating utterances, it nevertheless appears that the court's inquiry was limited to factors relevant to the Miranda problem, and that it gave almost no consideration to the question of voluntariness apart from its Miranda aspects.

First, Officer Schleig testified to the statement Bernett made to him, and said that without doubt Bernett was very intoxicated at...