JOHN R. BROWN, Chief Judge:
Appellant was convicted of violating 18 U.S.C.A. § 2114
The facts are not complicated. On August 29, 1967 — the date is important — James Moore, a rural mail carrier, delivered a C.O.D. parcel to a residence in Seminole County, Georgia. The charge was $20 and the package was addressed to Alvin Hopkins. Alvin paid for the package, and Moore observed a second young man with Hopkins at that time. Later, as Moore drove down the road, that second man stopped him and asked for stamps. Moore handed him the stamps and when he turned his back to reach into a change box, he heard an explosion and felt something strike him in the back of the head. Looking around, Moore saw the young man, positively identified at trial by Moore as the same man as the Appellant here,
Tyler then left Moore and the doctor and went into Donaldsonville, Georgia, to inform local authorities that a shooting had occurred. Sheriff White was summoned and he went immediately to find Moore. Sheriff White found Moore at the local hospital and was told that the assailant was "one of the boys out at Ish Hopkins." The Sheriff and other officers hurried out to the Hopkins' home and there apprehended Appellant and his cousins the Hopkins twins, Alvin and Calvin. Thus far all is in order, but then the Sheriff, who was hardly one expected to read the latest advance sheets of Supreme Court opinions, especially three then scarcely two months old, told the other officers to take the three young men to the hospital to let Moore identify the gunman.
Just as the carload of officers and suspects arrived at the local hospital, Moore was being placed in an ambulance for transportation to another hospital in Columbus, Georgia. The events that then transpired are revealed in Moore's testimony:
"A After I got to the doctor and they placed me in the ambulance, Carl Thompson and Morris Stewart, GBI Agent Morris Stewart, drove up at the hospital beside the ambulance and pulled Mr. Rivers out of the car and showed him to me.
A No, they pulled another one of the twins out with him; and I told Carl when he pulled him out of the car and when he started to get the other man, `I said Carl there's no use, this is the man that shot me here.'
Q Pointing to whom?
A Mr. Rivers.
Q Willie Samuel Rivers?
A Yes sir.
Q Did you say anything else to him?
A I said, `Why did you shoot me?'
Q Did he say anything to you?
A He said `I ain't shot you.'
* * * * * *
Q What, if anything, did you say concerning the other boy or boys, young men that were there? Who was that Calvin and Alvin Hopkins?
A That's right. Well, when they brought one of the twins out of the car, I don't know which one it was, I told him, I said `There's no use in pulling anybody else out of that car.' I said `I know this is the boy that shot me.'
Q Then, you were taken to Columbus; is that correct?
A That's right."
After this identification, Sheriff White ordered that the three young men be taken into town and placed in the county jail so they could be questioned. Each of the young men was given the required Miranda warnings which were read to them from a printed card. Appellant, 18 years of age with an eleventh grade education, indicated he understood his rights and didn't want a lawyer. The Hopkins boys were questioned first, then Appellant was questioned, but he volunteered nothing. Persisting in his efforts, the Sheriff asked, "Didn't Mr. Moore, the rural mail carrier, point his finger in your face and ask you why you shot him?" and "Don't you think Mr. Moore knows who shot him?" In spite of this, Appellant continued to assert his innocence.
Changing his tack, the Sheriff then called the Hopkins boys' aunt and had her come down to the jail. She told her nephews that if they didn't tell the truth, "you'd better not come back to my house, if he [the Sheriff] don't kill you or get you, I will." After their aunt left, the Hopkins boys, anxious to be released, pressured Appellant to tell the Sheriff what had happened since Moore "had done picked him out." The Sheriff was called to the cell, and Appellant then admitted that he had shot Moore to get the money but insisted that he had used a rifle. On the Sheriff's own description, Appellant was emotionally upset, crying and the like, at this time.
Three days later, presumably in order to clear up some discrepancies in Appellant's oral statement to the Sheriff, but more probably to get a written statement, a Postal Inspector interviewed Appellant. Before this was done Appellant was again fully advised of his Miranda rights. However, the Postal Inspector also showed Appellant 18 U.S.C.A. § 1001, which deals with penalties for making false statements. In this interrogation the Inspector elicited a signed statement in which Appellant admitted (as he had orally to the Sheriff) shooting Moore, but continued to insist that he had used a rifle instead of a pistol. Still not satisfied with Appellant's statement since all the evidence suggested the use of a pistol, the Inspector repeated five days later the identical procedure he used during his first interview with Appellant and obtained a statement acknowledging that the weapon used was a pistol, not a rifle, and this led to the recovery of the pistol used in the assault.
At trial, the District Judge determined that all the admissions and the gun were admissible over Appellant's objections. No objection was made to Moore's ambulance stretcher out-of-court identification of Appellant. Although some testimony about the existence of confessions was admitted prior to the jury's being excused, the Judge did not allow the jury to hear any part of them until a hearing was conducted outside the jury's presence
Generally courts are not disposed to consider errors which have not been brought properly to their attention, but "we may, however, carefully examine the entire record to determine whether it reveals plain errors affecting substantial rights noticeable under Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S. C.A." Rogers v. United States, 5 Cir., 1962, 304 F.2d 520, 522; Smith v. United States, 1962, 118 U.S.App.D.C. 235, 335 F.2d 270, 274; cf. Amos v. United States, 1921, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. Cautious as we are, and should be, in taking such a course, we feel that plain error of constitutional proportions was committed at this trial. Spectacular as it was, and so evident on the face of the record so that it is bound to be brought up later, we think it equally appropriate to consider it at this time. See Alexander v. United States, 5 Cir., 1968, 390 F.2d 101, 103 n. 3.
It is an understatement, of course, to say that the rights of a criminal defendant in pre-trial proceedings have expanded greatly in just the last few years.
The decisions of the Supreme Court in Wade
What does this mean in this case? Of course we have no retroactivity problem for the identification confrontation took place August 29, 1967, nearly three months after the June 12, 1967,
All three young men in the police car were under arrest. A significant lapse of time had passed since the assault on Moore. Although much of this assault, Moore's physical indifference to a gunshot wound to the skull, and his ability to make an eyeball-to-eyeball identification of his lethally armed assailant is most unusual, the fact is that this record does not reveal that any emergency existed or that the police feared Moore was dying.
The inherent dangers of impromptu identifications such as the one here are well-documented in Wade, and we see no need to go into them again. The opportunity for suggestive practices, either accidental or intentional, are ample. To the usual hazards must be added here the special danger to reliable identification from reliance on the judgment of a man just shot in the back of the head. The rationale behind requiring counsel the next day at the hospital during a more
But this remand does not necessarily forecast a new trial. Although the testimony by Moore about the hospital confrontation "is the direct result of the illegal lineup `come at by exploitation of [the primary] illegality,' Wong Sun v. United States, 371 U.S. 471, 488 [83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455] * * * [and the Government] is therefore not entitled to an opportunity to show that that testimony had an independent source," Gilbert v. State of California, 388 U.S. at 272-273, 87 S.Ct. at 1956, 18 L.Ed.2d at 1186, the Trial Judge may still be able upon reconsideration to "declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman v. State of California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711. Also, the Trial Judge must satisfy himself that the in-court identification of Appellant by Moore — not testimonially related to the occurrence of the confrontation or as a product thereof — was either harmless error or arrived at independent of the primary illegality and was untainted by it.
Since Appellant may possibly have to be retried, sound judicial administration dictates that we make some additional comments on problems that arose at this trial that may arise again. See Clifton v. United States, 5 Cir., 1965, 341 F.2d 649. Appellant basically has three separate arguments that he urges upon us now
Second, Appellant challenges the Postal Inspector's use of 18 U.S.C.A. § 1001 as an inducement to tell the truth. His theory is that although this statute does not purport to make the statements inadmissible it has often been construed as not applying to statements made to officers during interrogation.
Third, Appellant contends that the requirements of Jackson v. Denno, supra, were not satisfied in two respects. The first is that the Trial Judge determined voluntariness without looking at or reading the confessions themselves. So far as warranting reversal goes, the record does not bear this out, and no discussion is called for as to any retrial since, if the statements are again offered, the record can be made clear that the Judge has looked at them in making his prior independent determination of voluntariness. The second prong of the attack is that the Judge allowed evidence of confessions to get to the jury before voluntariness was established. The record shows, however, that although some evidence concerning Miranda warnings having been given was introduced before the Judge excused the jury, the jury was withdrawn, and an extended examination was conducted with the Judge then making his voluntariness determination before the jury heard, saw or read the confessions. What Jackson v. Denno, supra, aimed at, was first, the vice in allowing the jury to decide both voluntariness of the confession and guilt simultaneously, and second, requiring a prior
Reversed and remanded.