Certiorari Granted October 22, 1956. See 77 S.Ct. 103.
PRETTYMAN, Circuit Judge.
Appellant was indicted, tried and convicted on a charge of rape. The jury added to the verdict the death penalty.
Three points should be discussed. The first point concerns a confession. The rape occurred at about six o'clock in the evening on April 7, 1954, in the furnace room in the basement of the apartment house where the complaining witness lived. The assailant was masked. The janitor's quarters were also in the basement and were occupied by the janitor and his wife, two grown sons, and a younger son. Appellant Mallory, a half brother of the janitor, had also been living in the janitor's quarters for about six weeks prior to the day of the crime. The investigating police officers suspected Mallory and his two grown nephews. Mallory and one of the nephews had left the place immediately after the crime. Mallory was found and arrested at about two-thirty on the afternoon following the crime, April 8th. He and the two nephews were taken to police headquarters and questioned for a short time. At some time after four o'clock all three agreed to take lie detector tests. Some delay occurred while the officer in charge of the polygraph was located. During this interval a meal was served to the three men, no further interrogation occurring during this time. Until the lie detector tests began the three men were together. They were examined one after the other, the two nephews first, and finally, at about eight o'clock, the officer began his examination of Mallory. At about nine-thirty Mallory admitted guilt, describing in detail what had occurred, and immediately thereafter he repeated his account to two other officers. Sometime after ten o'clock the police telephoned the home of the United States Commissioner. That official was not available. At ten-forty-five Mallory was given a physical examination by a deputy coroner and was found to be in good physical condition. Mallory told this officer he had no complaints to make, except for a slight cold; he said he had not been struck or threatened and no promises had been made. At about eleven o'clock he was confronted by the complaining witness. Between eleven-thirty, p. m., and twelve-thirty, a. m., he dictated his confession to a stenographer, who typed it. This typewritten document was admitted in evidence at the trial.
The second point concerns a statement made by the court to the jury. After the jury had been deliberating several hours it sent a note to the court. It asked, first, whether it had any choice of verdicts other than the four upon which it had been instructed, i. e., guilty with the death penalty, guilty as charged, not guilty by reason of insanity, or not guilty. The second question was:
The court said:
The third request of the jury was for a reading of the code respecting rape. The judge read the statute
It is strongly, and with reasonable basis, urged upon us that the above-quoted statement of the trial judge was error. It is said that in the first place a possible sentence, other than the death sentence, was of no concern to the jury, and that in the second place the statement permitted the jury to select the death sentence by comparison with other possible sentences although the jury had before it no data upon which it could evaluate such other sentences. The statement, appellant urges, enabled the jury to fix the death penalty because it did not want the defendant subject to release under any circumstance at the end of ten years. It is argued that the jury should have been required to make its determination as to the death sentence solely upon the basis of data before it, that is, upon the basis of the facts concerning the crime itself.
It is true that imposition of sentence by a judge under modern procedure and the imposition of sentence by a jury rest upon different bases. When a jury
Forceful though we think the foregoing considerations to be, we think appellant's argument cannot be sustained. Unlike the situation in the ordinary case, the jury had a serious responsibility in respect to punishment for this crime. They had a right to know what the law is upon that punishment. Thus, clearly, they had a right to know that the punishment other than death is imprisonment for not more than thirty years. But the phrase in this statute — "for not more than thirty years" — is not the whole of the law upon the matter; standing alone it is not an accurate reflection of the law. A minimum sentence is required, and parole applies. The trial judge did no more than state accurately the whole law in respect to punishment for this crime. He did not attempt to forecast what might happen or to elaborate in any way. He did no more than state the law upon the point, and the point was one for the jury in this case. We think the jury was not remiss in seeking to know the alternative sentences as an aid to an intelligent decision upon the problem imposed upon them by the statute; i. e., whether the death sentence was the proper imposition. We think the trial judge was not in error when in response to the request he gave the jury accurately the whole of the law respecting punishment for this offense.
Mallory's third point is that the admission into evidence of articles of clothing worn by him at the time of the alleged crime was error. He relies on Nelson v. United States
Immediately after Mallory signed a confession officers questioned him about his clothing. He told them it was in the janitor's apartment, which adjoined the furnace room where the rape occurred. He gave written permission to go to the apartment and get the clothes and accompanied two officers on that errand. The shorts, coat, shirt and trousers bore seminal stains.
Mallory argues that his consent to the search was not clearly shown to have been without duress or coercion. We think it was, and, moreover, the consent was an immediate accompaniment to a confession of the crime and derives color from the confession.
The judgment of the District Court will be
I cannot agree with the court's conclusions that (1) a proper answer was given to the jury's inquiry as to whether a sentence of imprisonment would assure appellant's confinement for the rest of his natural life; and (2) the admission in evidence of the confession was proper under the McNabb rule.
It would appear, as the majority says, that it is generally proper for a trial judge to inform the jury of "the alternative sentences as an aid to an intelligent decision upon the problem imposed upon them by the statute." See Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404. The judge must be ever wary, however, that the efficacy of the additional information be not far outweighed by palpable prejudice to the defendant.
This jury did not request information as to alternative sentences. It requested an assurance that if it did not impose the death sentence, the defendant would nevertheless receive a term long enough to make him die in prison; and that his sentence would not thereafter be modified by the judge, or commuted or pardoned by the executive or shortened by the parole authorities. "In the instant case, this is what the jury wanted to know, and its purpose in seeking information is too plain for argument." Coward v. Commonwealth, 1935, 164 Va. 639, 178 S.E. 797, 800. The information the judge supplied, in the light of the jury's purpose in requesting it, was grossly prejudicial to the appellant.
Appellant was arrested at 2:30 p. m., but the police made no attempt to bring him before a committing officer until some time after 10:00 p. m., when they telephoned the home of the United States Commissioner and found he was unavailable. Rule 5(a), F.R.Crim.P., requires that an arrested person be taken before a committing officer "without unnecessary delay". As I pointed out in my dissenting opinion in Green v. United States,
The delay in taking appellant before a committing officer was the deliberate choice of the police and not the result of unavoidable circumstances. The arrest occurred during regular business hours and in taking appellant to police headquarters immediately thereafter police passed within earshot of many of the approximately 50 officers,
In the present case the majority hold the delay "not unreasonable," because there were three suspects. They say "it is inconceivable that [the police] should be required to lodge charges against any suspect until their investigation has developed with some certainty a justification for charges".
The policy of discouraging the airing of reckless charges is commendable. But another and more commendable policy is that the police should not arrest any person on mere suspicion,
The police here preferred
Even if it be assumed
As an additional ground for its holding, the majority relies upon an alleged requirement of the McNabb rule of a showing that "the confession was due to the delay". The reliance is apparently upon the dictum of this court in Watson v. United States,
After obtaining the written confession from appellant, the police also obtained from him a written consent to a search of the apartment where his clothes were. Certain clothes thus found were admitted in evidence. I agree with the majority's statement that the consent to the search was "an immediate accompaniment to * * * and derives color from the confession." On that account I would hold the one to have been as inadmissible as the other.
For the foregoing reasons, I would reverse the judgment of conviction and remand the case for a new trial.