United States v. Pate

• Decision Date: 22 April 1965
• Docket Number: No. 64 C 2000.,64 C 2000.
• Citation: 240 F. Supp. 696
• Parties: UNITED STATES of America ex rel. Thomas E. KEMP, Petitioner, v. Frank J. PATE, Warden, Illinois State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of Illinois

240 F. Supp. 696

UNITED STATES of America ex rel. Thomas E. KEMP, Petitioner, v. Frank J. PATE, Warden, Illinois State Penitentiary, Respondent.

No. 64 C 2000.

United States District Court N. D. Illinois, E. D.

April 22, 1965.

E. T. Cunningham, Chicago, Ill., for petitioner.

William G. Clark, Atty. Gen. of Illinois, Thomas D. Decker and Philip J. Rock, Asst. Atty. Gen., Chicago, Ill., for respondent.

WILL, District Judge.

Petitioner, Thomas E. Kemp, was convicted in the Criminal Court of Cook County, Illinois of the robbery of Reynold Mitchell and sentenced, on June 26, 1958, to a term of not less than nineteen (19) nor more than twenty (20) years' imprisonment in the Illinois State Penitentiary. The judgment of conviction was affirmed by the Illinois Supreme Court on November 26, 1963, People v. Kemp, 29 Ill.2d 321, 194 N.E.2d 217 (1963).

On December 1, 1964, petitioner filed a petition for a writ of habeas corpus, alleging that the trial court erred in failing to suppress a signed, typewritten confession which petitioner claims was not given voluntarily and which, admittedly, was obtained by the police after some twenty-eight hours of detention. Petitioner contends that his conviction is tainted by the use of such evidence and that his confinement, pursuant to the conviction, is therefore unlawful and in violation of rights guaranteed him by the Fifth and Fourteenth Amendments to the Constitution.

This contention, and the factual assertions upon which it is based, were presented to the trial court by a motion to suppress and to the Illinois Supreme Court by petition for a writ of error. The trial court, after hearing, denied the motion to suppress without comment. The opinion of the Illinois Supreme Court, cited supra, while noting that the alleged confession was obtained after twenty-eight hours' detention, affirmed the judgment of conviction on the ground that the trial judge — if he believed the testimony of the police officers who testified in opposition to the motion to suppress and contradicted petitioner's testimony — could have concluded that the confession was made voluntarily.

After an initial examination of the instant petition, we ordered respondent to show cause why the petition for a writ of habeas corpus should not be granted, appointed counsel to represent the petitioner and set the matter for a hearing. While the petition contains certain allegations with respect to the prosecutor's closing argument and the "vagueness" of the instructions given to the jury, these issues do not present questions of constitutional consequence. The inquiry of the court, and the evidence and arguments offered by the parties were confined to the relationship between the extended period of detention, the circumstances relating thereto and the voluntariness of petitioner's alleged confession. This is the principal question raised by the instant petition.

The relevant facts are as follows. During the month of May, 1958, the Chicago police received complaints from three delivery truck drivers, each charging that they had been robbed while in the Woodlawn, or 7th Police, District of the city. Apparently, the modus operandi described by the complainants were similar in each instance.

On May 26, 1958, Robert Willin, one of the complaining drivers, observed a man resembling the thief leave an automobile and enter a building at 6157 South Kenwood Avenue. He notified the police who arrived a few minutes later and entered the building, Willin remaining outside. The police officers later emerged with the petitioner and a man named Wesley Price under arrest.

At the trial, and upon hearing in this court, petitioner testified that at about noon on May 26, 1958, he and Price parked a car near 61st and Kenwood and went directly to Price's third floor apartment at 6059 South Kenwood where, at approximately 12:30 p. m., they were taken into custody by the police and placed in a squad car in the alley behind the building. Petitioner states that he asked the arresting officers why he was under arrest and was told that he would "find out later" and that he asked to telephone his sister (with whom he had been living) but was not permitted to do so.

Kemp and Price were then taken to the 7th District Police Station. Kemp was separated from Price and put in a room where a detective took his name and fingerprints. Petitioner testified that he again asked about the charge for which he was being held and was again told that he would find out later. He was then placed in the station house bullpen. Approximately fifteen minutes later, petitioner was returned to the original room where the same detective questioned him as to his employment and prior criminal record. Kemp testified that he asked the detective to allow him to call "my people", but the detective returned him to a cell, telling him that he had nothing to do with the case. After fifteen or twenty minutes in the cell, Kemp was placed in a show-up, the first of several conducted during his detention. He was pointed out, apparently by Willin, the driver who had called the police. It appears that Wesley Price, who was arrested with Kemp, was not in this or any of the subsequent show-ups.

After the show-up, Kemp was again returned to a cell. He states that he renewed his request to be allowed to call his sister and again inquired as to the charges against him. The lock-up keeper, however, also told him that he was not involved in the matter. Based on petitioner's testimony as to the time of arrest and the activity in the station house, he was returned to his cell after the show-up between 1:30 and 2:00 p. m. on May 26th.

The testimony of the police officers with regard to these details at the hearing conducted by the court is at variance with petitioner's testimony and with their own testimony in the trial court as well. Officer George Kobar, the police officer in charge of Kemp's interrogation, testified in this court that he first saw the petitioner around 11:45 a. m. on the morning of the 26th as he was brought in to the station; that he had been told that Willin had identified Kemp; that upon seeing Kemp he asked him if he committed "the robbery", though not identifying any particular incident, and that Kemp said that he did. Kobar states that Kemp was then placed in a cell where he remained until around 5:00 p. m., when a show-up was held. In the trial court, however, Kobar testified that he did not see the defendant until about 1:30 p. m.; that he asked Kemp for his name and employment (processing which Kemp claims was done by another detective); and, that upon asking this question, Kemp proceeded to tell him, without any prompting and without being advised of any charge, that he was unemployed, that he had a prior criminal record and that he had been in the penitentiary for doing the same thing as he had done this time (i. e., robbery). On cross-examination, however, Kobar stated that Kemp's oral confession did not come until after he had been identified in a show-up (again, apparently by Willin). Other detectives, however, testified — both at trial and at the instant hearing — that Kemp arrived in the station house around noon, that Kobar was present, and that Kemp made an immediate oral confession as soon as Kobar asked him to state "what happened".

These variations are not necessarily essential to the determination of the question before the court. However, they point up the problems which arise when a judicial inquiry to determine whether a deprivation of constitutional rights occurred must be made long after the events took place.

As regards the instant case, it would appear to be almost inconceivable that Kemp, a man twice previously convicted and sentenced to the penitentiary, would — without being advised of any charge and without being asked a direct question — volunteer his entire past record and confess guilt to a specific crime the moment he was brought to the police station. It is even more doubtful in view of the uncontroverted fact that no attempt was then made to elicit a full statement from him. Petitioner's testimony — that he inquired as to the reason for his arrest and that he sought to call his sister — appears to be accurate. Moreover, if Officer Kobar's trial testimony is correct and he did not see Kemp in the station until 1:30 p. m. (possibly, in light of his testimony on cross-examination before this Court, not until after a first show-up), petitioner's allegation that the processing was done by other officers to whom no confession was made is also probably accurate.

At this point, the testimony given by the principals in this court as to the events of May 26 becomes even more divergent. The conflict centers principally around the issue of interrogation.

Officer Kobar states that Kemp was not interrogated on the day of arrest. According to him, Kemp was placed in a cell following the initial oral "confession" and remained in the cell until the next morning, except for a short period later that same afternoon when a second show-up was held. He testifies that he made no attempt to question Kemp except for a short conversation after the second show-up, during which time Kemp remained in his cell (and again admitted his guilt).

Detective Walter McCarthy, however, recalls seeing Kemp being questioned by Kobar in the "Detectives Room" on the first floor of the station house late on the afternoon of the 26th and noted that a number of unidentified detectives were also present. He states that Kemp made an oral admission of guilt at that time. The other detectives involved in the Kemp case, Detectives Richard Dickson and John Geimer did not recall seeing Kemp on May 26 except when he was brought in under arrest. Kemp also testified that he saw Dickson and Geimer on the first floor of the station house when he was first processed and states that they did not participate in any interrogation session.

In contrast to Detective Kobar's...