United States v. Sain
| Decision Date | 07 April 1960 |
| Docket Number | No. 12759.,12759. |
| Citation | 276 F.2d 324 |
| Parties | UNITED STATES of America ex rel. Charles TOWNSEND, Petitioner-Appellant, v. Frank G. SAIN, sheriff of Cook county, Illinois, and Jack Johnson, warden of the Cook county jail, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George N. Leighton, Chicago, Ill., for appellant.
Francis X. Riley, Asst. State's Atty., Chicago Ill., Benjamin S. Adamowski, State's Atty., Cook County, Ill., Chicago, Ill., for appellees.
Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and GRUBB, District Judge.
On December 12, 1958, Charles Townsend filed a petition for habeas corpus in the district court, naming Frank G. Sain, sheriff of Cook county, Illinois, and Jack Johnson, warden of Cook county jail, as respondents. Petitioner was at that time awaiting execution in said jail, pursuant to a judgment of the criminal court of said county, convicting him of murder. The conviction had been affirmed by the Illinois Supreme Court, People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729.
Petitioner prayed for the district court to grant him a full hearing and that orders be entered setting aside his conviction and the judgment and sentence imposed upon him, ordering a new trial, and for general relief.
Pursuant to a rule to show cause, respondents filed an answer to the petition, incorporating the final order of the Supreme Court of Illinois in a post-conviction proceeding instituted by petitioner.
On a hearing, a record of the entire proceedings in the Illinois courts was produced and considered by the district court.1 No other evidence was offered or received in that court.
From the records of the state court proceedings, which were before the district court, appear the basic undisputed facts now related.
One evening during the middle of December, 1953, Vincent Campbell, who had known petitioner for several years, saw him at 35th street and Prairie avenue, in Chicago. Campbell asked "how he was doing" and petitioner said he was "going to make some money", and Campbell noticed that he was carrying a housebrick. Several hours later, Campbell saw petitioner in a billiard hall near 35th and Prairie, where Campbell was playing a game of billiards. Petitioner came in carrying a bag which he laid on a bench. The bag had a little tear in it and it was folded near where it was ripped. Campbell noticed that it contained a brick.
Jack Boone, 43 year-old steelworker, living with his wife and two sons, left his home at 3754 South Michigan Avenue for work, December 18, 1953. He was found later in the passageway alongside the apartment house in which he lived, with blood on the back of his head behind his right ear. He was taken shortly afterward to a hospital where he died on December 21, 1953. His wallet was discovered on December 19, 1953, in a nearby apartment building.
Except for 8 or 9 days, petitioner had been unemployed in 1953.
About 1:45 a. m. on January 1, 1954, petitioner, 19 years old, was arrested by Chicago police officers, to whom he stated that he was a narcotics addict and that he had given himself heroin 1½ hours earlier. He was taken to the 2d district police station, where at about 2:30 a. m. he was asked his name, address, and such information, by the lockup keeper, who made out an arrest slip. His answers were clear and coherent. He was then questioned in a room in the station for about 30 minutes by police officers Fitzgerald, Cagney and Corcoran, about various crimes, which he denied having committed. He was then placed in the women's cell alone and at about 5 a. m. was removed to the 19th district station. He was not interrogated there. He remained there until that evening, lying or reclining on his bunk.
Petitioner was returned to the 2d district station about 8:30 p. m. and a showup in which petitioner was viewed with others lasted about 10 minutes. During the showup plaintiff and another prisoner engaged in a fist fight. To all of the officers who saw him petitioner seemed clear, distinct and coherent in speech. Shortly before 9 p. m. petitioner was questioned by Cagney about the Boone killing and other matters for about 15 minutes. He stated he struck a man and robbed him, on the west side of Michigan Avenue, north of 38th street, about 6 p. m. on December 18.
While at the 2d district station, petitioner complained of stomach pains and held his abdomen. When he asked for a doctor, Cagney telephoned for one.1-a At 9:45 p. m. Dr. Clarence E. Mansfield, a police surgeon, came. He spoke to none of the investigating officers, but was directed by the desk sergeant to petitioner. The doctor examined petitioner, tested his heart and eyes, diagnosed his symptoms as resulting from drug addiction and withdrawal, and injected into his arm a solution with a hypodermic syringe. The injection consisted of 2 cc.'s of a saline solution into which the doctor dropped 1/8 grain of sodium phenobarbital and 1/230 grain of hyoscine hydrobromide. He left four ¼ grain phenobarbital tablets with petitioner to be taken, two around midnight and two in the morning. (Petitioner took two that night and the remainder the next day.) At 11:15 p. m., assistant state's attorney Janega came and questioned petitioner. The questions and his answers were recorded by a shorthand reporter.
Petitioner was not again interviewed until the following day, Saturday, January 2, 1954, between 11 a. m. and 1 p. m., after he had been taken to the states attorney's office. A copy of the transcribed questions and answers was handed to petitioner and Mr. Janega read the original to him. Thereupon, petitioner put his initials "CT" on the first page of the original and he signed each page on the margin, and also at the bottom of the last page. His initials on the first page were put alongside the words "Re: death of Jack Boone". On this occasion petitioner did not appear sleepy or complain in any manner.
After signing his confession, petitioner was returned to the 2d district police station, arriving there about 3 p. m. on January 2, at which time he spoke coherently and made no complaints.
On Sunday evening, January 3, 1954, petitioner asked Cagney to get the doctor again because he was not feeling well. The police surgeon arrived that evening and gave petitioner some phenobarbital tablets to take orally.
Petitioner attended a public inquest conducted by the coroner of Cook county, Illinois on Monday morning, January 4, 1954. He was in custody of police officers. He was advised by the coroner of his right not to testify, but chose to do so, was sworn and again confessed the Boone murder.
In accordance with Illinois practice, the state criminal court, when the case was called for trial, disposed of petitioner's motion to suppress his confession on the ground that it was involuntary. Dr. Mansfield and Dr. Harry R. Hoffman, licensed physicians, and 17 lay witnesses testified for the state, and Dr. Charles D. Proctor, who held a degree as a doctor of pharmacology, but was not a licensed physician, testified for petitioner.
Dr. Mansfield testified that he had examined about 20,000 narcotics addicts, about 70% of these being addicted to heroin; that he had treated about 6,000 or 7,000 who were suffering from a withdrawal of narcotics and in about 50% of that number had used the same injection and treatment he administered to petitioner. He found from his experience that phenobarbital reacts very well combined with hyoscine to quiet a person, to pacify, because it delays at once emotional trends that cause one to be hilarious and excitable. The addict in withdrawal is suffering from a nervous reaction. The hyoscine is to relax and the phenobarbital to seditize. Dr. Mansfield testified: .
He also testified that he could recall no case in his experience where his use of hyoscine produced loss of memory.
When asked on cross-examination whether he had given petitioner "any truth serum or anything you considered that?", he answered "No. I never saw any in my life". (Emphasis supplied.)
Dr. Proctor testified that he had never prescribed treatment for drug addicts and had never observed the effect of hyoscine on human beings, his knowledge being gained by reading textbooks. He considered a 1/8 grain of phenobarbital given hypodermically a very low sedative dose. Hyoscine, in his opinion, exaggerates a narcotic's restlessness, prostration and excitation and deorientation would be increased, affecting consciousness and memory within a wide range. Within that range it produces amnesia and memory loss as to details and events occurring during the period of the effects of the hyoscine, which is 5 to 8 hours. The duration of amnesia would be the same for an addict as for a normal person however. In answer to a hypothetical question, he gave as his opinion, inter alia, that the assumed person suffered amnesia and had only partial consciousness.
The court overruled the motion to suppress the confession as evidence.
At the subsequent jury trial the confession was introduced into evidence, in these circumstances:
Petitioner, as a witness in his own behalf, denied that he robbed or assaulted Boone. He also testified that he remembered Mr. Janega coming to see him. He also remembered being in the states attorney's office and being handed some papers which he held in his hand while the state's attorney read to him.
Lewis Matsuoka, a court reporter, testified at the trial that he took shorthand notes of the interview of Janega with petitioner and reduced the same to typewritten form. That document as received in evidence at the trial, reads as follows:
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