Vorhauer v. State

• Decision Date: 27 July 1965
• Court: United States State Supreme Court of Delaware
• Parties: , 59 Del. 35 Hans Helmut VORHAUER, Appellant, v. STATE of Delaware, Appellee.

Page 886

212 A.2d 886

9 Storey 35, 59 Del. 35

Hans Helmut VORHAUER, Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

July 27, 1965.

Upon appeal from conviction and sentence by the Superior Court of New Castle County on a charge of burglary in the fourth degree. Reversed.

Henry A. Wise, Jr., Wilmington, for appellant.

Richard I. G. Jones, Deputy Atty. Gen., for the State.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice.

The defendant Hans Helmut Vorhauer was convicted and sentenced on a charge of burglary in the fourth degree in violation of 11 Del.C. § 395.

This appeal brings up for review the admissibility in evidence of an oral inculpatory statement given by the defendant to the police during an alleged illegal detention.

I.

The uncontroverted dispositive facts are as follows:

The defendant was arrested in his home near Wilmington by State Police officers Lt. Donald J. O'Connor, Det. Sgt. Thomas F. Buckmaster and Det. William B. Fugate. The arrest took place on the night of August 21, 1961 at 11:15 o'clock. The defendant was 18 years of age, born in Germany, with education limited to the eleventh grade. He was alone in the house in which he lived with his mother, apparently ready to retire. The officers showed the defendant a warrant for his arrest issued by Justice of the Peace Maurice F. Fitzharris under date of August 1, 1961 ¹ pursuant to the complaint of Det. Fugate. The warrant charged the defendant with breaking and entering Gaylords Discount Department Store on August 1, 1961 with intent to commit larceny. In usual form, the warrant was addressed 'To Any Constable' of New Castle County commanding him 'forthwith to apprehend' the defendant and 'bring him before me [Magistrate Fitzharris] or some other Justice of the Peace for the County aforesaid that he may be examined touching the premises and to be further dealt with as to law and justice shall appertain.' The warrant also commanded the Constable to summon the complainant Fugate 'to appear and give evidence relating to the subject matter of the complaint.'

In making the arrest, the officers asked permission to search the house and the defendant consented; but nothing was found. Meanwhile, the defendant's mother returned home. She conversed with the defendant and with one of the officers and learned of the charges against her son.

The officers then took the defendant to State Police Troop No. 1 Headquarters at Penny Hill (hereinafter 'Troop Headquarters') and he was placed in one of the two cells located in the basement of the building. The cells were for temporary detentions only; there were no facilities for longer incarcerations. The other cell was occupied by Franklin Lee Minor, held as a co-defendant for the same offense.

At about 1:30 A.M., Det. Fugate sat down with the defendant in or near the cell and attempted to interrogate him and to obtain a written statement from him regarding the Gaylord burglary. The defendant refused to answer all questions, repeating 'I have nothing to say until I am further advised by my attorney.'

'Processing' at Troop Headquarters, consisting of fingerprinting, photographing and other administrative details, took about 20 minutes. At about 3:30 A.M., during the processing, the defendant and Minor were permitted to confront each other. Minor made accusatory remarks to the defendant who did not reply. During this period, the officers, in a friendly way, urged the defendant to confess, showing him items of evidence from time to time.

At about 5:00 A.M., the defendant was taken before Magistrate Fitzharris by Fugate and Buckmaster. Buckmaster 'related the circumstances' of the case to the Magistrate but neither of the officers was sworn. The defendant was not informed by the Magistrate of his right to retain counsel and of his right to have a preliminary hearing, as is required by Superior Court Criminal Rule 5(b), Del.C.Ann.; nor did the Magistrate hear 'evidence', or give the defendant an opportunity to cross-examine witnesses against him and introduce evidence in his own behalf, as is required by Superior Court Criminal Rule 5(c); nor did the Magistrate 'commit' the defendant or discharge him, as is required by Rule 5(c). ² The defendant's uncontradicted testimony as to the scope of the 'hearing' was:

'Well, they took me in front of Magistrate Fitzharris. He asked me my name; I told him. He said, 'You are charged with the burglary of Gaylord's; $8,000 bail,' and I was taken back to the Troop.'

Upon leaving the Magistrate's office, the defendant was returned to the cell at Troop Headquarters shortly after 5:00 A.M. From that time on the morning of August 22 until the morning of August 23, the defendant remained in the cell without communication except with police personnel; ³ he was not questioned further during this period. On the morning of August 23 at about 10:00 o'clock, still in the cell, the defendant asked Det. Fugate for something to read and then volunteered that he was ready to make a statement. Fugate conducted the defendant to Lt. O'Connor and Sgt. Buckmaster and they took the defendant's oral statement, completing it at about noon. The statement was partially inculpatory and partially exculpatory.

Thereafter, during the afternoon of August 23, the defendant was returned to appear again before Magistrate Fitzharris. The record discloses no further hearing on the subject charge at that time. ⁴ By a 'commitment' document dated August 23, 1961, executed by the Magistrate, the defendant was 'Held in default of $8,000. Bail Bond for Superior Court' on the subject charge. At about 3:30 P.M. on August 23, the defendant was taken to the New Castle County Correctional Institution by the officers pursuant to the commitment.

As to the reasons for not taking the defendant before the Magistrate directly upon arrest, as commanded by the warrant, Det. Fugate testified:

'Q Now you had a warrant for his arrest that commanded you to bring him forthwith before Magistrate Fitzharris. Why didn't you obey the warrant?

'A Because there was a lot of investigation to be completed.

'Q You elected to ignore the mandate of your warrant and take him for questioning instead of complying with the law with respect to the warrant; is that right?

'A There are certain phases, sir, of the investigation, sir, that had to be completed.'

And in this connection, Sgt. Buckmaster testified:

'Q That warrant directed you to bring him forthwith before Magistrate Fitzharris or some other magistrate, did it not?

'A That is correct.

'Q Did you comply with that warrant?

'A Yes, sir.

'Q When?

'A On 4:50 a.m. on the 22nd, approximately five hours after he had been arrested.

'Q And where did you take him in the meantime?

'A Troop One, Delaware State Police.

'Q Now what was the purpose of taking him there?

'A To process him and to talk to him.

'Q And how long did the processing require?

'A A matter of minutes.

'Q A matter of minutes?

'A Longer than that, perhaps 20 minutes, by the time you take finger-prints and photograph him.

'Q So aside from the first 20 minutes you could have used for that, the rest of the time was used for what purpose?

'A Interrogation.'

As to the reasons for returning the defendant and his codefendant Minor to the cell at Troop Headquarters, after the appearance before the Magistrate, instead of turning him over to the correctional authorities, Sgt. Buckmaster testified:

'Q Now after the alleged arraignment before Magistrate Fitzharris what was the magistrate's order * * *?

'A He was turned over to us for transportation back to the Troop.

'Q He was specifically turned over to you by the magistrate?

'A Yes, sir.

'Q He was not committed to the custody of the New Castle County Workhouse?

'A He was turned over to us, sir.

'Q Isn't is customary that a prisoner, after he is arraigned, be turned over to the New Castle County Correctional Institution?

'A No, sir.'

* * *

* * *

'Q What was done with him from the time he was taken before the magistrate until he was taken down to the New Castle County Correctional Institution?

'A He was at Troop One, sir.

'Q Doing nothing?

'A What to do you mean, sir? He was being talked to by other authorities.

'Q He was being interrogated?

'A Yes, sir.'

As to his reasons for giving the oral incriminating statement on August 23, the defendant testified:

'Q Hans, why did you call and ask to be permitted to make a statement?

'A Well, it seemed to be the only way to get out of the cell and to get out to the Workhouse where I could somehow manage to contact my family and you, my lawyer, and do something about the situation in which I found myself.

'Q Would you have made a statement if you had been taken to the Workhouse after you had been at Magistrate Fitzharris?

'A No.

'Q Would you tell us once more why you made a statement?

'A I was held incommunicado and I wanted to get a lawyer, contact my family, see whether I could raise bail, and this was physically impossible with me being in a cell at the basement of Penny Hill Barracks.'

From the outset of the trial, the defendant took the position that the oral statement of August 23 was inadmissible because taken during, and as the result of, an unlawful detention. This position was duly preserved by timely objection to the admissibility of the statement after voir dire examination of the officers and the defendant, by motion to strike, and by motion for directed verdict. The Superior Court ruled that the sole test was voluntariness and submitted that issue to the jury under a specific charge.

On motion for new trial, the Superior Court stated in this connection that Wilson v. State, 10 Terry 37, 49 Del. 37, 109 A.2d 381 (1954) was controlling; that thereunder the test was voluntariness in which 'many factors play a part', including length of detention; that, considering the age and apparent intelligence of the defendant, it could not...