White v. Pepersack

Citation352 F.2d 470
Decision Date01 November 1965
Docket NumberNo. 9971.,9971.
PartiesEddie WHITE, Sr., Appellant, v. Vernon L. PEPERSACK, Warden, Maryland Penitentiary, The Hon. Thomas B. Finan, Attorney General of the State of Maryland, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Henry R. Lord, Baltimore, Md. (Court-assigned counsel) for appellant.

Loring E. Hawes, Asst. Atty. Gen., of Maryland (Thomas B. Finan, Atty. Gen., of Maryland, on the brief) for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Circuit Judge, and BUTZNER, District Judge.

HAYNSWORTH, Chief Judge.

The question is whether the defendant, after having been convicted of murder, is foreclosed by his trial admission of the homicide from attacking collaterally the prosecutor's use of (1) evidence seized in an unlawful search, (2) a confession claimed to have been involuntary, and (3) testimony claimed to have been perjured.1 We hold that he is not.

At about three o'clock one morning, after a long night of drinking, of real or imagined slights at the hands of his paramour and her mother and of bickering with a roomer, the defendant slew a comparative stranger and wounded in the leg another man whom he regarded as his friend. This occurred in the house of the paramour, immediately across the street from his own,2 where several men, including the defendant's male roomer and the two victims had been laughing and talking with the paramour's mother.

The defendant returned to his own house, where, until then, he had spent the major part of that night and where the baby was sleeping. He left his shotgun there and immediately departed in search of a taxicab. As he left his house his friend, who had been shot in the leg and who had made his way to the street, called to him, declaring he had been shot and asking assistance in getting to a hospital. The defendant responded that he was sorry he had shot his friend, but he had to get someone to stay with the baby.3 He raced away to another street, hailed a taxicab and directed the driver to the home of his mother-in-law.

En route, however, the defendant instructed the driver to stop at the site of a public telephone. There the defendant placed a call to the police and informed the answerer that he was the one who had done the shooting at the Madison Avenue, Baltimore, address and that they need not come in search of him, for he would return to the scene as soon as he got someone to stay with his baby. In the taxi, he then proceeded to the house of his mother-in-law, aroused her and told her of his need. With her, he then returned to the scene in a taxi.

Meanwhile, policemen had entered his house and seized the shotgun. Upon his arrival, he was arrested and confronted with the shotgun. He readily acknowledged its ownership.

Carried to the police station and asked if he would give a statement, he responded:

"Yes I will if I can call my boss, and have him come and read it to me. I will tell you the story, but I will not sign it until I see my attorney."

He was then told:

"Eddie you know that anything you say must be free and voluntary on your part with no threats or promises of any kind, and that anything you say can and will be used against you in court."

He then told the policemen his version of the events of the night, but declined to sign a written transcription of the interrogation because of the absence of the lawyer, the "boss"4 whose assistance he sought in his preliminary statement.

We may interpolate here, that the constitutional claims are not insubstantial. Indeed, thus far, the State has suggested no justification for the search of defendant's house except an assertion that it was an incident of the subsequent lawful arrest of the defendant as he alighted from the taxi in the street. To prevail, the assertion must surmount obvious difficulties both of time and space.5

At the trial, the gun was introduced in evidence, as were photographs of it. Some of the witnesses testified and the unsigned transcript of the defendant's interrogation was read to the jury.

After the State's case was in, the defendant took the stand. He stated that his right not to testify had been explained to him, but he wished to testify. He then told his story. He admitted the homicide, as he had from the outset, but he testified that he was out of his mind until his friend called to him for help after the shooting. He then realized what he had done. He offered no explanation for his conduct except intoxication and anger against his unharmed roomer. He claimed he had no recollection of what prompted him to shoot the two victims.

Under these circumstances, for a number of reasons, we think unfounded the District Court's conclusion that White's "judicial confession" foreclosed a collateral attack based upon earlier defects, as a voluntary guilty plea might have done.

It is a familiar principle that a voluntary plea of guilty does foreclose subsequent collateral attack upon the judgment and the sentence when the attack is based upon an alleged deprivation at some earlier stage of the proceedings.6 The guilty plea is acceptable however, only after a searching inquiry to assure that its tender is voluntary. Even so, the plea is not a bar to a subsequent collateral attack if it is found in those proceedings that, because of the alleged deprivation, the plea was involuntary. The rule is applied in recognition of the fact that a defendant, aware that a confession may be excludable as involuntary, may still enter a truly voluntary plea of guilty if he also knows that other admissible evidence will establish his guilt overwhelmingly. If it appears, however, that the plea was the coerced product of a tainted confession, the involuntary plea, entered in ignorance of his rights, does not bar the collateral attack.7

In contrast, there was no such inquiry here. The defendant, responsively, said he had been told of his right not to testify, but, of course, there was no probing behind his statement of his wish to do so. More particularly, there was no warning, and no reason for him to foresee, that what he had to say might be treated as a plea of guilty to the offense as charged in the indictment.

Treatment of his testimony as a plea of guilty to first degree murder as charged, subverts the defendant's obvious intention. Clearly, he did not knowingly confess guilt of the charge of...

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  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • U.S. District Court — District of South Carolina
    • September 5, 1969
    ...or by any other deprivation of the defendant's constitutional rights it cannot be regarded as a voluntary plea. White v. Pepersack (C.C.A.Md.1965) 352 F.2d 470, 472; Kelly v. Warden (D.C.Md. 1964) 230 F.Supp. 551, 556. But, petitioner's complaint in this case about a confession, first raise......
  • Mann v. Richardson
    • United States
    • U.S. Supreme Court
    • May 4, 1970
    ...1967); Carpenter v. Wainwright, 372 F.2d 940 (C.A.5th Cir. 1967); Doran v. Wilson, 369 F.2d 505 (C.A.9th Cir. 1966); White v. Pepersack, 352 F.2d 470 (C.A.4th Cir. 1965); Zachery v. Hale, 286 F.Supp. 237 (D.C.M.D.Ala.1968); United States ex rel. Cuevas v. Rundle, 258 F.Supp. 647 (D.C.E.D.Pa......
  • United States ex rel. Ross v. McMann
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 26, 1969
    ...in Ross we are by no means the first or only circuit to reach this result. Particularly in the Fourth Circuit, e. g., White v. Pepersack, 352 F.2d 470, 472 (1965); Jones v. Cunningham, supra; the Fifth Circuit, e. g., Bell v. Alabama, supra; and the Ninth Circuit, e. g., Smiley v. Wilson, s......
  • Pendergrast v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 31, 1969
    ...California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Wade v. Yeager, 377 F.2d 841, 845 (3rd Cir. 1967); White v. Peppersack, 352 F.2d 470, 472 n. 5 (4th Cir. 1965); Dillon v. Peters, 341 F.2d 337, 340-341 (10th Cir. 1965). And see Tehan v. United States ex rel. Shott, supra note 2......
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