United States v. Brierly, 16652.

• Decision Date: 09 November 1967
• Docket Number: No. 16652.,16652.
• Citation: 384 F.2d 992
• Parties: UNITED STATES of America, ex rel. Frank SMITH v. Joseph R. BRIERLY, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania 19130, Commonwealth of Pennsylvania, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

384 F.2d 992 (1967)

UNITED STATES of America, ex rel. Frank SMITH v. Joseph R. BRIERLY, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania 19130, Commonwealth of Pennsylvania, Appellant.

No. 16652.

United States Court of Appeals Third Circuit.

Argued September 28, 1967.

Decided November 9, 1967.

Benjamin H. Levintow, Asst. Dist. Atty., Philadelphia, Pa. (Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., on the brief), for appellant.

Robert J. Sugarman, Dechert, Price & Rhoads, Philadelphia, Pa., for appellee.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

This is an appeal by the Commonwealth of Pennsylvania from a judgment of a district court granting habeas corpus to Frank Smith, a prisoner confined pursuant to a state conviction of felony murder, without prejudice to the right of the state to retry him.

At Smith's trial it was shown and not denied that he and two confederates, who were tried separately, had committed an armed robbery of a taproom in the course of which they herded the patrons down steps into a cellar. There it was discovered that one of the patrons was bleeding from head injuries, which allegedly led to his death and to the indictment of the robbers for felony murder.

It was the state's contention that the decedent's fatal injury had been caused by a blow on the head struck by Smith with a pistol butt. At the trial no one testified that he had seen Smith or anyone else strike the deceased, and Smith denied that he had done so. The state's evidence on this point consisted of police testimony disclosing so-called "tacit admissions" by Smith in failing to deny accusations made against him by his confederates while all of them were prisoners under interrogation.

A fair statement of a principal episode which the trial court permitted a detective to recount to the jury as disclosing a "tacit admission" by Smith, appears in the following excerpt from the opinion of the district court:

"The police were allowed to relate on the witness stand what relator\'s accomplices had said in his presence and his reaction upon hearing these supposed accusations. * * * To the oral statements that relator had struck the decedent they said he clenched his lips and shook his head. Was this a flat denial? A sign of determination to say nothing until he received the assistance of counsel? The sign of disgust at his accomplices\' mendacity? Or was it, as the trial judge promptly characterized the movement, an indication of `consternation\'? We hold that under circumstances such as these, any attempt to verbalize relator\'s virtual inaction cannot, as a matter of due process, be condoned."

We agree with the district court that the use of such an episode as an admission by the accused of a fact vital to the proof of a capital offense cannot be squared with the requirement of the Fourteenth Amendment that criminal procedure be fundamentally fair. We have pointed out that the episode occurred while the accused was in custody and under police interrogation on a capital charge. If his choice was to remain silent, he could not constitutionally be forced to speak. This has been settled law for thirty years. Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. A "confession by which life becomes forfeit must be...