United States v. Robinson

• Decision Date: 28 February 1972
• Docket Number: No. 24475.,24475.
• Citation: United States v. Robinson, 148 U.S. App. D.C. 140, 459 F.2d 1164 (D.C. Cir. 1972)
• Parties: UNITED STATES v. Lawrence P. ROBINSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

459 F.2d 1164 (1972)

UNITED STATES v. Lawrence P. ROBINSON, Appellant.

No. 24475.

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 1971.

Decided February 28, 1972.

Mr. Norman Diamond (appointed by this court) for appellant.

Mr. C. Madison Brewer, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Mr. Jerome Wiener, Asst. U. S. Atty., also entered an appearance for appellee.

Before TAMM and MacKINNON, Circuit Judges, and A. SHERMAN CHRISTENSEN,^* U. S. Senior District Judge for the District of Utah.

PER CURIAM:

Appellant, convicted of first degree felony murder, second degree murder, and armed robbery, seeks reversal of these convictions on three grounds: the admission during trial of a pre-trial statement by appellant to the court, the inability of the court reporter to provide a complete trial transcript, and the alleged ineffective assistance of appellant's defense counsel.

The jury returned a verdict of guilty on all counts. On June 22, 1970, appellant was sentenced to life imprisonment on the first degree murder count, fifteen years to life on the second degree murder count, and ten years to life on the armed robbery count, all sentences to run concurrently.

Appellant's conviction arose from an attempted robbery of a Safeway store on September 16, 1969, when an armed man entered the store, confronted a security guard, struggled with him, and finally shot and killed the guard before making his escape.

One Owens testified that on the day of the shooting he was employed with another carpenter to install a turnstile at the Safeway store. Owens related that he saw the struggle between the guard and robber, went to the guard's aid by hitting the gunman on the back of the head with a hammer, and then took refuge outside of the store. He stated that he had taken a good look at the gunman while inside the store and then again while outside, from a distance of about three to five feet, under good lighting conditions, for a period of three to four minutes. Wilbert Lee testified that he had known appellant for a period of two years because they had at one time been incarcerated together. He testified that he had seen appellant near the entrance to the Safeway store on the day in question. Soon thereafter, he heard two shots and saw appellant flee from the store, bleeding from his head and carrying a gun. Lee then entered the store and saw the victim lying on the floor. Later that night he saw appellant standing outside a restaurant. Appellant inquired whether Lee wanted to buy a pistol for $40, but he did not indicate from where he had obtained the weapon. At the time of his testimony, Lee himself was being prosecuted for robbery. Lieutenant Robert M. Boyd of the Homicide Squad told the jury that when arrested on October 8, 1969, appellant had a band aid on the left rear of his head, covering a freshly healed three-fourths inch laceration. Aside from the purported admission of appellant next mentioned, there was sufficient evidence from which the jury could have concluded that the appellant was the armed man.¹

When the case was first called, the following exchange took place out of the presence of the jury:

"MR. BONNER Defense Counsel: In this particular case, having spoken to the defendant, I think it would be well to have the defendant address the Court out of the presence of the jury.

"THE COURT: All right.

"DEFENDANT ROBINSON: How are you doing, Your Honor? The lawyer came to start the trial, but he has never told me, only about a year and I feel personally I am not ready to start trial.

"THE COURT: I can\'t understand the words you are speaking. Did you get that, Mr. Reporter?

"(Record read.)

"THE COURT: All right.

"DEFENDANT ROBINSON: I feel this way, because like he has never really talked to me on the grounds, you know, as far as how he is setting up this defense concerning my case. I feel I am going in blind, you know, just going to start this trial, although personally I know I am guilty. I know the consequences of the trial. I know the time involved—I would like to confer, to go over with him this case, you know, really get the trial together. Really, I don\'t know what he has in mind."

The admission of this statement into evidence before the jury created the decisive problem in the case.

Before admitting the statement the court, out of the jury's presence, gave appellant an opportunity for explanation. Appellant claimed that he had meant to say that he was innocent. The court ruled: "It is clearly an admission. . . . It is admissions or conclusions against the party making them. I will permit him to explain to the jury what he meant by that." The jury was then brought in and the court stated: "Ladies and gentlemen, this is an official transcript of what transpired in this Court this morning when the case was first called." The record containing appellant's statement was then read to the jury by the reporter. Thereafter, defense counsel questioned appellant about the statement. Appellant testified that he had meant to say that he was innocent but because of his nervousness had misstated his thoughts.² The government attorney placed a great deal of emphasis on appellant's statement, referring to it a number of times in his final summation.³

Appellant contends that the court erred in allowing the pre-trial statement to be introduced into evidence during the trial. This contention is based on appellant's right to remain silent, the necessity of expressly waiving this right, and an alleged conflict between appellant's Fifth Amendment right to remain silent and his right to have effective counsel under the Sixth Amendment. For reasons to be discussed below, we agree that the admission of the statement into evidence before the jury constituted prejudicial error and we reverse.

The phrase "although personally I know I am guilty" is somewhat unique. It was not a typical admission obviously intended to concede or establish an element of the crime or the presence or absence of a needed fact.⁴ It hardly appears to be a confession since there was no identification of any particular offense referred to in the statement and appellant clearly intended to have a jury trial on the merits⁵ of all of the specific charges with which he was confronted. Nor can it be considered a plea of guilty for similar as well as other obvious reasons. Yet in practical effect as far as the jury was concerned the statement likely partook of the nature of all three.

It has been stated that the distinctions between confessions and admissions are "subtle and questionable". People v. Chessman, 52 Cal.2d 467, 341 P.2d 679 (1959). The United States Supreme Court has indicated that admissions should receive the same cautious treatment accorded confessions. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). With this similarity in mind and the statement occurring as it did in the course of judicial proceedings before the judge, its examination in the light of standards applicable to confessions⁶ and pleas of guilty⁷ is relevant.

It is universally recognized that a confession of a person accused of a crime may be admissible in evidence against the accused only if it was freely and voluntarily made, without duress, fear, or compulsion in its inducement and with knowledge of its nature and possible consequences. United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951). "The term `voluntary' means that the confession must be the product of the defendant's own judgment and operation of his own mind, uninfluenced by methods and devices which are denounced by law or by any extraneous disturbing cause which deprives him of his free will and volition." 29 Am. Jur.2d Evidence § 543, 595 (1970). Federal law commands that the trial judge shall "out of the presence of the jury, determine any issue as to voluntariness" of a confession. 18 U.S.C. § 3501 (1970). A "confession" is defined as "any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing." Id. at (e). The trial judge in determining the issue of voluntariness "shall take into consideration all the circumstances surrounding the giving of the confession." Id. at (b).

Viewing the circumstances surrounding the "admission" in the instant case, we find appellant speaking to the trial court in order to obtain more time to prepare his defense and to consult with his counsel. It seems unreasonable to assume that he had a knowledgeable and intentional purpose to confess the crimes charged, or any of them, challenging as he was his counsel's diligence in preparing defense in furtherance of the pleas of not guilty. Appellant's explanation as a slip of the tongue appears more reasonable.⁸

Even if appellant had intended the statement as a confession of his guilt, it was still improperly admitted. There is no indication in the record that appellant had knowingly and intentionally waived his right against self-incrimination guaranteed by the Fifth Amendment.⁹ When the appellant made the statement "although personally I know I am guilty" he appeared to be incriminating himself; there is no indication that he had waived his right to remain silent. A waiver "is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Concerning waiver, this court has said:

"As with the right of counsel, waiver of the privilege Fifth Amendment self-incrimination must be informed and intelligent. There can be no waiver if the defendants do not know their rights. The rule must be the same, we think, when the record is silent or inconclusive concerning knowledge. Basic constitutional protections, especially in criminal cases, should not be suspended by mere

...