United States v. Mullings

• Decision Date: 07 July 1966
• Docket Number: Docket 29976.,No. 335,335
• Citation: 364 F.2d 173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Alexander MULLINGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

364 F.2d 173 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Alexander MULLINGS, Defendant-Appellant.

No. 335, Docket 29976.

United States Court of Appeals Second Circuit.

Argued April 14, 1966.

Decided July 7, 1966.

J. Edward Meyer, III, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, Robert G. Morvillo and John E. Sprizzo, Asst. U. S. Attys., New York City, on the brief), for plaintiff-appellee.

Leon B. Polsky, New York City (Anthony F. Marra, New York City, on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges.

LUMBARD, Chief Judge:

Timothy Mullings appeals from his conviction entered March 12, 1965 after a trial, without a jury, before Judge Cooper in the Southern District of New York. Indicted for the theft of property worth more than $100 moving in interstate commerce under 18 U.S.C. § 659, and for conspiracy so to steal under 18 U.S.C. § 371, he was acquitted on the conspiracy count and found guilty of the substantive offense. Mullings was sentenced to a term not to exceed three years pursuant to 18 U.S.C. § 4208(a) (2). We reverse the conviction because the court considered inadmissible evidence.

The events leading to the arrest of Mullings, which were sufficient to establish a prima facie case, were set forth in the testimony of the Railway Express security officers and of co-defendant Tollie Matthews, who pleaded guilty to the conspiracy count and testified as part of the government's case. Mullings and Matthews went together to the Railway Express Terminal at 16th Street and Eighth Avenue where they arrived at 2:30 in the morning of January 6, 1965. When they came to a fence in the terminal separating the loading platforms of the Railway Express Agency and the Port Authority, Mullings waited on the Port Authority side. Matthews crossed over to the REA section and shortly afterwards was stopped by a workman while attempting to carry off a carton of shoes. Mullings, who had been observed crouching in a position where he could see through a hole in the fence and then nodding his head as a signal to Matthews, was arrested as he hurried to an exit. Later that morning he was briefly interviewed by an Assistant United States Attorney to whom he made an exculpatory statement, then arraigned before a Commissioner and later taken to the West Street Detention Center where he was interviewed and examined by a medical technician.

The prosecution contended that Mullings was a look-out. The defense argued that he had gone along with Matthews who went to collect a debt from a friend and that Matthews was acting on his own. Mullings did not take the stand and offered no evidence.

Appellant complains that several items of evidence, all duly objected to, should not have been considered: first, that the court should not have given any weight to the fact that Mullings did not offer any explanation to the arresting officers; second, that the Assistant United States Attorney should not have been permitted to testify regarding Mullings' pre-arraignment statements; third, that the government should not have been permitted to introduce evidence impeaching these exculpatory statements of Mullings; and fourth, that the testimony of the medical technician at the prison that Mullings admitted using narcotics should have been excluded. We agree that these items of evidence should not have been considered by the court, and that their admission constituted error requiring reversal of the conviction.

The trial judge should not have given any weight whatever to the fact that, when Mullings was arrested by Arthur Connolly, a Railway Express security officer, Mullings "did not state that he was in the terminal looking for someone." Apparently the judge thought that Mullings had been asked why he was there; in fact he was not asked. In any event, Mullings was under no duty to say anything and his failure to speak should not have been considered against him. Having been placed under arrest he had the right to remain silent. It is well settled that an inference of guilt may not be drawn from a failure to speak or to explain when a person has been arrested. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (June 14, 1966); United States v. Lo Biondo, 135 F.2d 130, 131 (2 Cir. 1943); Ivey v. United States, 344 F.2d 770 (5 Cir. 1965); Helton v. United States, 221 F.2d 338, 341 (5 Cir. 1955).

Were this the only error, we would be disposed to remand for reconsideration without this item of evidence, inasmuch as the case was tried to a judge; but other errors make that course impossible.

When Mullings was brought by an F. B. I. agent to the room of an Assistant United States Attorney just prior to his arraignment, the Assistant first cautioned him before beginning questioning. The Assistant testified¹ that he told Mullings "that he had a constitutional right not to answer any of my questions if he felt that the answers to those questions would in any way incriminate him. I further advised him that anything he would tell me could be used against him in a court of law; and finally I advised him that he had a right to consult with any attorney." Mullings responded that he understood the warning, the Assistant proceeded to question him, and Mullings made several false exculpatory statements.

The caution did not correctly inform Mullings of his rights; he was told not that he had a right to remain silent but only that he need not answer incriminatory questions. As Mullings may well have chosen to say nothing if he had been advised that he could do so, the government should not have been permitted to make any use of what he did say. The possibly misleading nature of the advice given here distinguishes United States v. Currie, 354 F.2d 163, 165 (2 Cir. 1965), where we held that no fixed formula need be used as long as a suspect was informed of the substance of his rights. Obviously any reasonable doubts on this score must be resolved in favor of the defendant in the light of the opinion of the Chief Justice in Miranda v. Arizona, supra. Thus we cannot...