WASHINGTON, Circuit Judge.
In Killough v. United States, 114 U.S. App.D.C. 305, 315 F.2d 241 (1962), a majority of this court en banc held that where a police officer procured illegally, in violation of FED.R.CRIM.P. 5(a), inadmissible oral and written confessions from Killough, it was error to admit at the trial Killough's second confession to the same police officer made orally at the District of Columbia Jail because it was "the fruit" of the first confessions. We said, inter alia, 114 U.S.App.D.C. at 310, 315 F.2d at 246:
On his second trial held pursuant to our reversal and remand, the appellant was again convicted by a jury of the crime of manslaughter and was sentenced by the District Court to serve a term of five to fifteen years. He appeals, asserting that it was error to put before the jury (1) the incriminating statement he gave to a civilian employee at the District of Columbia Jail, and (2) the evidence provided by certain witnesses, including the Coroner and his staff, relating to a dead body, evidently believed by the jury to be the body of the appellant's former wife, the victim of the manslaughter.
The present case is not concerned with a confession made to the police, to a law-enforcement agent, or to a person investigating crime. The case concerns a statement, not introduced in evidence at the first trial, made by Killough to a university graduate student, working part-time as a "Classification Intern" at the District of Columbia Jail, under the following circumstances:
On October 25, 1960, Killough was brought before a United States Commissioner and charged with first degree murder. Both the Commissioner and the Deputy Clerk at that time advised him
On the morning following his appearance before the U. S. Commissioner, Killough was brought by a Jail officer from the cellblock to the visiting room at the Jail, called the "Rotunda," and was seated at a table with a Classification Intern for an interview. The Intern was 26 years of age and a graduate student at Georgetown University working for the degree of Doctor of Philosophy in history. His duties at the Jail were to interview for 15 hours per week inmates of the Jail. For this he received room and board and a few incidentals such as laundry, shoeshines, etc. Such interviews were routine procedure and were conducted with respect to all inmates. Questions were asked pursuant to an interview form, the first page of which was designed to give information with respect to close relatives or friends of the inmates for purposes of mail and visits. In the case of inmates charged with felonies, further questions were asked with a view to reflecting the inmate's employment, military, and past prison records, and the inmate's version of the offense for which he was charged, if he wished to give it, for purposes of classifying him before trial and placing and treating him after trial. The inmate's answers were recorded on the form by the Intern.
The Intern who interviewed Killough was dressed in civilian clothes and did not identify himself to Killough. He
The Intern testified that prior to the interview he had had no report from, or conversation with, the police or anyone else about the Killough case, and that his only information about the case had been derived from newspaper accounts that he had read. The Intern stated further that he made no threats or promises to Killough. He testified that when an inmate declines to sign, his usual practice is to tell the inmate that his statement will not be used against him. He testified further that if he is asked by the inmate at any time whether such a statement will be used against him, he responds that it is confidential and will not be used against him. He could not remember whether he told this to Killough. Killough however did not decline to sign when asked to do so. The Intern said that Killough answered the questions willingly and cooperatively, although he appeared nervous and disturbed. At one point he stated that his stomach was "getting upset." Other classification interviews were being conducted at other tables in the Rotunda simultaneously.
Following a hearing held pursuant to Killough's motion to suppress the Intern's testimony and the form containing Killough's signed confession, the District Court, in an opinion reported at 218 F.Supp. 339 (1963), ruled that the evidence was admissible.
Killough had been committed to the care and custody of the Jail. The statement obtained from him was pursuant to routine procedure and the result of questioning designed to provide information for a specific and legitimate purpose related to the Jail's classification and treatment of persons committed to its care. See Section 24-442 of the D.C.Code, set out in pertinent part in the margin.
Indeed, in a somewhat comparable situation, that involving an examination pursuant to 18 U.S.C. § 4244, into the sanity or mental competency of accused to stand trial, Congress has specifically provided that no statement made by the accused in the course of the examination "shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding." The wisdom of and need for such a rule in that situation are obvious, and the rule has been recognized even when a statute does not so provide.
We hold that the statement obtained from Killough by the D. C. Jail under the routine classification questioning conducted under the procedure followed in this case was not admissible as evidence against him in his trial. His conviction must be reversed and remanded for a new trial. In view of this conclusion, it seems unnecessary to pass upon Killough's contention that the confession was inadmissible because he had not then had the advice of counsel.
We now proceed to the contention that the District Court erred in admitting evidence offered by the Government relating to the victim's body. On the first appeal of this case this court did not pass on the admissibility of this evidence.
At the second trial on remand, following a tender of the evidence, the District Court, 218 F.Supp. at 342-344, ruled that the evidence was admissible. It rejected the notion that the evidence as proffered relating to the body was fruit of the first inadmissible confession, stating that the challenged evidence did not in any way connect the defendant with the crime. Judge Danaher and I agree that the evidence was admissible.
The Coroner's testimony before the jury was in substance that on October 25, 1960, he was called to the intersection of Kenilworth Avenue and Jay Street, in the Southeast Section of the District of Columbia, to meet a police captain; that he went with the captain along Jay Street to a spot on the east bank of the Anacostia River, the road there being unimproved; that he there saw the remains of a human body, partially covered with debris; that the body was practically "destroyed" and was between 15 and 20 feet from the road in a "little open space" with "a lot of brush and a lot of trees all around in the immediate vicinity"; that he pronounced the body dead; that in his opinion it had been dead for a period of 10 to 14 days; and that while he was there the body was lifted into a morgue ambulance and taken to the District Morgue, where an autopsy was performed in his presence. The ambulance driver testified that he picked up
A licensed undertaker and director of a funeral home testified that on October 26, 1960, he went to the Jail and that Killough there signed in his presence a "release" form, which was put in evidence. The release bearing Killough's signature "authorized and instructed" the funeral home "to take care of and prepare for burial the remains of Goldie Killough." The release further contained a statement that Killough certified that "I am the husband of the above named decedent." The funeral home director stated that he then took the signed release to the District Morgue and a body "at least 80, 85 per cent decomposed" was released to him by the Coroner's office on the next day. The assistant superintendent at the Morgue identified further Morgue records which indicated that the body of Goldie Killough was released to the funeral home on October 28, 1960.
An FBI agent testified that he examined under a microscope the hairs received from the Coroner's office and found that the hairs were Negroid hairs which for the most part had been bleached to a red-yellow-brown color but that the few unbleached areas were dark brown to black. A woman friend of Mrs. Goldie Killough had previously testified that the hair of Mrs. Killough (a Negro) was naturally dark brown but that she tinted it to a lighter brown with gold highlights. Another woman friend testified that Mrs. Killough bleached her hair to "kind of a reddish brown."
It is clear that the evidence of the Coroner and his assistants in no way connected Killough with the body; that connection was established in other ways.
The body was near a road, in an open space, close to a heavily populated area, and was only partially covered by debris. The place was very near the home of Killough's then girl friend (now his second wife), where the police took him into custody. In time the body (or its bones) would have been discovered and would have been identified as that of Mrs. Killough. Friends and relatives had for some time been concerned about Mrs. Killough's unexplained disappearance and had been pressing Killough to explain it to them and to report it. One of them had even called the missing persons bureau. The police had interviewed Killough about the disappearance and had discovered discrepancies, if not untruths, in his story. They had found blood on the mat in the trunk of Mrs. Killough's car and had evidence that the blood type was that of Mrs. Killough.
We are constrained to hold that the admissibility of the evidence discussed in this Part, even including the testimony of the Jail nurse, does not justify affirmance of the conviction, in view of the error discussed earlier. See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
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The case is reversed and remanded for a new trial, if the Government chooses to proceed with one, with directions to exclude the evidence based on the Classification Intern's interview.
J. SKELLY WRIGHT, Circuit Judge (concurring in part and dissenting in part).
I concur in Parts I and II of the court's excellent opinion. For the reasons stated in Part II of my concurrence
As I said in my prior Killough concurrence,
This then was the situation which presented itself to Killough when he was interviewed by the Prison Classification Intern. Having already confessed twice within a period of 24 hours, he was ready to confess some more. As far as Killough knew, the Intern may have been another policeman obtaining still another confession. In the less than 24 hours since his last confessions, he had not been released on bail, nor did he have the benefit of counsel who would have told him that his prior confessions, being illegally obtained, were inadmissible in evidence. Under these circumstances it is obvious, to me at least, that to say that the confession to the Intern was unrelated to, not the result of, or not tainted by the immediately prior illegally obtained confessions is pure fantasy.
It seems to me that this court should clearly state that where a confession is illegally obtained in violation of Rule 5 (a), F.R.Cr.P., subsequent confessions, however or by whom abstracted, are likewise inadmissible unless the Government convincingly demonstrates the absence of connection with the prior illegal confession. In presenting this proof, the following considerations, among others, are most important: (1) Did the defendant have the advice of counsel subsequent to the illegally obtained confession? (2) What was the time interval between the confessions?
Applying these criteria, I would hold that Killough's confession to the Intern resulted directly from the illegally obtained confessions and that, being the fruit of illegal activity of Government functionaries, it must be excluded from his trial. Otherwise "the courts themselves [become accomplices in willful disobedience of law," McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 615, 87 L.Ed. 819 (1943).
DANAHER, Circuit Judge (dissenting).
After the Supreme Court's decision in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943), this court considered Mitchell v. United States, 78 U.S. App.D.C. 171, 138 F.2d 426 (1943). The sitting division then thought there was no alternative but to apply the McNabb "exclusionary" rule, and Mitchell's conviction was reversed. The Government realized how devastating would be the effect upon the administration of justice of any such automatic and sweeping application
The Supreme Court reversed, United States v. Mitchell, 322 U.S. 65 (1944), noting at page 68, 64 S.Ct. 896, 88 L.Ed. 1140, three other cases where applications of the McNabb doctrine had not been challenged by the Government. Mr. Justice Frankfurter in Mitchell undertook to explain the McNabb holding. He pointed out, as had McNabb, that "[t]he mere fact that a confession was made while in the custody of the police does not render it inadmissible." 322 U.S. at 69, 64 S.Ct. at 897. He emphasized the basis of McNabb, saying:
Again in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), Mr. Justice Frankfurter explained McNabb in terms of Rule 5 and its requirement of "judicial caution," and presentation of the accused before the Commissioner "without unnecessary delay." The Court pointed out that Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948) had implied no relaxation of the McNabb doctrine. Upshaw had made clear that the petitioner had been illegally detained for at least thirty hours "for the very purpose of securing these challenged confessions." (Emphasis added.) 335 U.S. at 414, 69 S.Ct. at 172.
Against such background, we had no difficulty in regarding as properly excludable Killough's confession prior to his presentation before the United States Commissioner on October 25, 1960. Quite otherwise were the circumstances after his appearance before the Commissioner. Judge Youngdahl with meticulous care had prepared an opinion which correctly analyzed the problem. Killough v. United States, 193 F.Supp. 905 (D.D.C.1961). Four judges here joined in an opinion, which I prepared, citing pertinent cases which had expounded principles upon which we would have affirmed Killough's conviction. Killough v. United States, 114 U.S.App.D.C. at 324, 315 F.2d at 241 (1962).
Such is the judicial caution which is contemplated by FED.R.CRIM.P. 5. This court had twice said that if an accused shall have received such warning he is thereafter free to talk or not, and if the accused, under such circumstances, voluntarily admits his crime his confession may be received against him. The Supreme Court refused to review our decisions in Goldsmith v. United States and Jackson v. United States.
This appellant on October 13, 1960, had strangled his wife because he believed she was interested in other men. He placed her body in the trunk of her own car as he considered ways and means of disposing of the corpse. He finally drove down past the home of his "girl friend," Miss Anna Holmes, and concealed the body in a dump. He then returned to Miss Holmes.
Neighbors and relatives questioned him as to the disappearance of Goldie Killough. Thus prodded, the appellant finally reported her disappearance to the Missing Persons Bureau. Interrogated by police, he purported to supply leads of possible value. As the police checked out the information, they discovered he had lied. They made an appointment for him to report to headquarters to clear up discrepancies. Instead of keeping the appointment, he fled. From Pittsburgh he telephoned to his "girl friend," Miss Holmes, who told him the police had been to her seeking to locate him. Thereafter, returning to the District at her suggestion, he went to the girl friend's home where he told her of events concerning some of which she testified at the first trial. At that time, no living person except Killough and possibly Miss Holmes, knew a single fact concerning the unwitnessed crime, not even where the body was. She telephoned to the detectives who came and picked him up.
On October 24, 1960, he told the officers he was aware of his constitutional rights and would neither affirm nor deny that he had killed his wife. Presented before the United States Commissioner the following day, the appellant received judicial caution, as noted.
Thereafter on the 25th, Miss Holmes had been at the jail to see Killough and left to secure a lawyer for him. He declined at the jail the proffered services of an attorney whom he knew because he had been counsel to the dead woman. That day an officer came to see Killough about his personal property and to secure clearance that the body might be turned over to an undertaker. Killough signed a form consenting to receive the officer, although obviously, he could have refused to do so. He signed the release for the undertaker. Impulsively, after ten days within which to think about the web of circumstances beginning with the death of his wife choked by his own hands, he told the officer what had happened and how he committed the crime. The judicial warning was still fresh in his mind but he wished to continue talking when the officer arose to leave.
On the 24th before the Commissioner's hearing, he had guided the officers to where he had concealed the body of his victim. One of my colleagues would exclude evidence concerning the corpse on the ground that its discovery directly resulted from police wrongdoing. He has thought of such evidence as the "fruit of the poisonous tree."
When this court divided five to four, the case was returned for a new trial. The Government then called as a witness a jail classification officer to whom Killough — after his appearance before the Commissioner — had related some details of the crime. The witness had no connection with the police. The situation was not unlike that in Tyler v. United States, 90 U.S.App.D.C. 2, 5, 193 F.2d 24, 27 (1951), cert. denied, 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326 (1952), where the opinion recited:
This court then said, in effect, whatever question there might have been as to the admissibility of the confession before Tyler had been brought before the Commissioner where he received "judicial caution," the admissibility of Tyler's statement to Gilkey was not questioned. "Indeed, that would be quite impossible as to those statements made by him at the Commissioner's and the jail." 90 U. S.App.D.C. at 9, 193 F.2d at 31.
At the second trial following a hearing on the admissibility of that testimony by the jail classification officer, Judge Curran prepared an opinion which appears as United States v. Killough, 218 F.Supp. 339 (D.D.C.1963). His findings and his conclusions led to his ruling that Killough's further confession to the classification intern might be received in evidence. He agreed thus with Judge Youngdahl who had found at the first trial that Killough's later statements were independent and voluntary. Of course it had become obvious that Killough wanted to talk about the episode. He carried around and exhibited — perhaps proudly — clippings from the newspapers which had detailed his crime. He later narrated the circumstances to a nurse.
Meanwhile, following our opinion of October 4, 1962, our judgment of remand reached the District Court on November 26, 1962. On December 11, 1962, Killough was released on bail. Two days later he married Miss Holmes. When called as a witness at the second trial, she asserted her privilege as his wife and her lips were sealed. Talk about fruits of wrongdoing! This case has reached the nadir. As in Mitchell v. United States, 78 U.S.App.D.C. 171, 138 F.2d 426 (1943), once again, this court has painted itself into a corner.
Since I would affirm Killough's conviction, it goes without saying that I agree with so much of Part III of Judge Washington's opinion as holds admissible the testimony of the nurse and the evidence relating to the victim's body.
"We do not undertake now to define the limits of such [constitutional] rights except to say that the authorities of that institution [the State Hospital] will not be permitted, over the protest of the accused, to reveal any confession made by him in the course of such [sanity] examination, or any declarations implicating him in the crime charged."
Cf. however, Hall v. State, 209 Ark. 180, 189 S.W.2d 917 (1945), where the statute provided that the doctor making the report to a court of a sanity examination might be called to testify by the court or either party, and the court held that the doctor could testify as to a confession made in the course of the examination. People v. Ditson and Cisneros, 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714 at 732-733 (1962), cert. denied and dismissed as to Cisneros, 371 U.S. 852, 937, 83 S.Ct. 93, 9 L.Ed.2d 88 (1962), involved as to Cisneros a similar statute and holding as to the testimony of court-appointed alienists where the plea was not guilty by reason of insanity. As to Ditson, certiorari was granted and the judgment vacated, 371 U.S. 541, 83 S.Ct. 519, 9 L.Ed. 2d 508 (1963), but later the opinion was withdrawn and the petition dismissed for mootness, 372 U.S. 933, 83 S.Ct. 885, 9 L.Ed.2d 769 (1963).