United States v. Brierly

• Citation: 267 F. Supp. 274
• Decision Date: 14 April 1967
• Docket Number: Misc. No. 3460.
• Parties: UNITED STATES of America ex rel. Frank SMITH v. Joseph R. BRIERLY, Superintendent.
• Court: U.S. District Court — Eastern District of Pennsylvania

267 F. Supp. 274

UNITED STATES of America ex rel. Frank SMITH v. Joseph R. BRIERLY, Superintendent.

Misc. No. 3460.

United States District Court E. D. Pennsylvania.

April 14, 1967.

COPYRIGHT MATERIAL OMITTED

Robert J. Sugarman, Court-appointed, Philadelphia, Pa., for relator.

Charles A. Haddad, Asst. Dist. Atty., Philadelphia, Pa., for respondents.

OPINION

JOSEPH S. LORD, III, District Judge.

Relator petitions for habeas corpus, alleging, inter alia, that he was unconstitutionally prejudiced by the use of "tacit admissions" against him at trial as well as by certain remarks of the trial judge made in the course of the charge. We have concluded that the writ must be granted.

I.

Relator and two co-conspirators, Young and Collins, were charged with the felony-murder of William Hill, a patron in a tavern which they robbed. In a separate trial at which neither Young nor Collins testified, Smith was found guilty of first degree murder, and on June 28, 1950, he was sentenced to life imprisonment.

The facts surrounding the alleged murder are not directly relevant to our present inquiry. We need only note that one of the material issues of fact at trial was whether the victim, Hill, died as a result of a blow allegedly inflicted on him by one of the co-conspirators. Soon after the robbery, all three men were arrested and subjected to interrogation by the police. The police elicited oral and written statements from Young and Collins, and relator was confronted with these statements on separate occasions. Interestingly enough, the alleged oral statements of the two men, to which the police officers testified on the stand, contained a clearer implication that Smith had struck the victim with a gun than did the written statements. The officers testified that Young's oral statement was that Smith had hit Hill (N.T. 112), and that Collins orally stated that although "he did not actually see Smith hit Mr. Hill, * * * due to his position * * * he knew that he didn't hit him and he knew that Young didn't hit him, so therefore it must have been Smith that hit him" (N.T. 113-114).¹

However, the subsequent written statements, which were produced and read at trial over defendant's objection, contained disclaimers of any direct knowledge as to who struck Hill or indeed as to whether the victim was hit by anyone. Asked whether he saw who struck Hill, Young said, "I didn't see him, but it had to be Smith because Collins was at the door." (N.T. 102). Collins' reply was a flat "* * * no, I don't know, my back was to the proceedings that was going on." (N.T. 107).

Despite these contradictions, Detective McDermott was allowed to testify that after Smith heard a recital by Young of an oral statement he had earlier given to the police, "Smith did not say anything * * *. He just put his head down like that (indicating) and shook his head like that (indicating). * * * He lowered his head and shook his head from side to side. He tightened his lips and just shook his head like that (indicating). At that time I asked him did he want to ask Young anything at that time, and he did not even answer my question at that time." (N.T. 112-113). Relator's trial counsel realized that since the court had refused to sustain his objection, the next best thing would be to have the evidence construed as a firm denial of Young's statement. He asked "that the stenographer note that the head was shaken from side to side with his lips clenched." (N.T. 113). But the trial judge responded otherwise to the evidence he had admitted: "The indication I got was not as a `no' but as a consternation. I want that noted, too." (N.T. 113).

Detective McDermott then testified that he next questioned Collins privately, obtained an oral statement implicating Smith in the death blow, and had Collins repeat the substance of the statement to Smith. "At that time Smith did not answer, he did not show any signs, he did not say anything." (N.T. 114).

Another police officer, Detective McGurk, testified that when Smith was confronted with the subsequent written statements of his co-conspirators, the relator again said nothing. (N.T. 94-95). These statements were then read into evidence. Detective Jones later testified that at least at one point, Smith did deny the truth of the statements (N.T. 124-125).

In addition, the police obtained a written statement from one of the patrons of the tavern, John Riggs, who had supposedly been a witness to the striking incident. The statement identified Smith as the assailant. At the trial, Detective McGurk testified that at the time the statement was taken from Riggs, Smith was present, but "He said nothing. He sat moot sic at that time." (N.T. 93).²

Thus, there were at least five instances of the use of tacit admissions against relator: the oral statements by Young and Collins, their written statements, and Riggs' statement.

Smith testified in his defense that he had struck no one in the course of the robbery (N.T. 139). He further insisted that when confronted with the statements of Young and Collins, he denied their veracity:

"Well, I shook my head because he said I struck the man, and I shook my head and said `No, I deny it.'" (N.T. 140). See also N.T. 142, 152-156.

The following colloquy with the court climaxed relator's testimony:

"Q. Did the police question you?

A. Yes.

Q. Did you tell them you had participated in this robbery * * *?

A. No, sir.

Q. Why didn't you tell them?

A. Why didn't I tell them? All they kept saying is,—I struck the man, and I denied that, I didn't strike him, and I wouldn't say nothing until I got some legal advice from my lawyer. That is what I told them." (N.T. 156)

The trial judge in his charge instructed the jury as to the use they might make of the statements by Young and Collins:

"You have a right to consider this: That an innocent man will not stand mute; if he is accused of something that he did not do, he will say, `No, I did not do it.' One of the detectives said that he shook his head. Now, the impression I got from the way the detective did it—and of course it is not binding on you, and I already told you so—that that gesture of the head may have been consternation of having his buddies squeal on him or tell on him, or it may have been no. But the impression I got from the detective was,—that it seemed to be consternation or surprise that these fellows had told on him. But if you decide that Smith said no, then you cannot consider that testimony, because then Smith made a denial. Where a man makes a denial, then any statement made against him in his presence cannot be considered. If you decide that he did not deny it, but that he stood mute, then you have a right to consider that as an indication of its truth, because otherwise he would have said that wasn't so. * * *" (N.T. 171).

Thus, only if the jury wholly believed Smith were they compelled to disregard the statements. Otherwise, relator's response was admissible as a tacit confession of their accuracy.

II.

After his conviction, relator did not appeal because "petitioner's parents obtained paid counsel for trial as petitioner was personally indigent and counsel concerned himself generally with conversing with the parents who, along with petitioner, was never advised or had knowledge of appeal." (Petition, ¶ 10 (a)). We have concluded that there is no evidence which suggests that the failure to appeal constituted a "deliberate by-passing of state procedures", Fay v. Noia, 372 U.S. 391 at p. 439, 83 S.Ct. 822 at p. 849, 9 L.Ed.2d 837 (1963), which would warrant our refusal to entertain the petition.

Relator did file a petition for habeas corpus in the Court of Common Pleas of Philadelphia County, the denial of which was affirmed by the Supreme Court of Pennsylvania. Commonwealth ex rel. Smith v. Rundle, 423 Pa. 93, 223 A.2d 88 (1966). Thus, it would seem that the courts of Pennsylvania have had ample opportunity to pass on Smith's contentions, and that the salutary doctrine of comity, see Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950), would not be offended by our own consideration of his petition.

Nonetheless, a question as to whether relator has exhausted all available state remedies was raised at argument before us. It is represented by the District Attorney that although the use of the tacit admissions was considered by the Pennsylvania Supreme Court, its disposition of the petition was founded on only one of the two theories of constitutional error here advanced by relator's counsel. Relator suggests that tacit admissions are constitutionally impermissible first, because they are equivalent to involuntary confessions barred by the general terms of the Due Process clause, and second, because they violate the specific commands of the Fifth Amendment privilege against self-incrimination. The Pennsylvania Supreme Court sanctioned the use of the tacit admissions in relator's case by reference to its opinion in Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966), where it held that the Fifth Amendment privilege prohibiting the use of tacit admissions, see Miranda v. State of Arizona, 384 U.S. 436 at p. 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), does not apply retroactively. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); and compare Tehan v. U. S. ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1965).

With regard to the question of voluntariness, the Pennsylvania Supreme Court "noted, that the record discloses that the trial court did not conduct a preliminary hearing in the absence of the jury to determine the admissibility of the testimony of the `tacit admission' as may be required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Since no objection to the introduction of the testimony on the ground of voluntariness was suggested...