Judge Robinson files an opinion in Parts I, II, IV and V of which Judge Wilkey and Judge Jameson concur. Judge Wilkey files an opinion in which Judge Jameson concurs, Judge Robinson dissenting for the reasons stated in Part III of his opinion. Thus Parts I, II, IV and V of Judge Robinson's opinion and Judge Wilkey's opinion together constitute the opinion of the court. The judgment of conviction appealed from is
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
This appeal is taken by James Bernett from his conviction of manslaughter
As to Bernett's first contention, my colleagues conclude that the admission was made in a noncustodial setting and was, for that reason, voluntary. That position is set forth in Judge Wilkey's opinion and is, of course, this court's decision on that phase of the appeal. My own examination of the record compels me to conclude that in evaluating the challenged statement, the District Court
My opinion is in five sections. Part I presents a summary of the evidence introduced at trial, including the circumstances surrounding the admission under attack. Part II reviews the pretrial suppression hearing on the voluntariness issue. Part III addresses the voluntariness issue, and is a dissenting view to the court's position. In Part III I outline the relevant case law, explain how I think it should have borne on the voluntariness determination, and discuss the Government's charge that the error complained of in that regard was harmless. Part IV treats the court's failure to charge the jury on the weight it could accord the admission, and expresses our unanimous decision. Part V summarizes the court's holdings.
I. FACTUAL BACKGROUND
Despite gaps and contradictions in the testimony adduced by the parties at trial, the basic facts as to what occurred on the day of the crime can be reconstructed and summarized. The victim of the homicide of which Bernett was found guilty was one Theodore Nixon, who with Bernett, the latter's commonlaw wife, Harriet Smith, and Ben O. Smith (no relation to Harriet Smith) shared a basement apartment at 1441 Euclid Street, Northwest, in the District of Columbia. On the morning of the homicide, the four awoke and began drinking, continuing until they had consumed their available supply of alcohol. Around noon they retired to sleep off the effects of the drinking. Nixon and Ben Smith slept on couches in the living room; Bernett and Ms. Smith went to the bedroom they shared in the back of the apartment. Some time later Bernett left the apartment and when he returned he assumed his role in the fatal episode.
At trial, Bernett gave the jury his version of what occurred.
Thereupon, Bernett turned his attention to Nixon, whom he accused first of stealing some of his money the week before, and then of stealing his wife. A quarrel ensued and as Bernett turned and walked over toward the couch where Ben Smith was still asleep, Nixon, who was in a thigh-high cast because of a broken leg, hit him with one of his crutches.
Ben Smith testified that Bernett had borrowed the five dollars before the four went to sleep, and that he did not wake up until about 4:00 o'clock in the afternoon when Roscoe Moore, a friend,
After leaving the apartment following his fight with the deceased, Bernett went to a club where he spent the next two hours drinking. He was found there around 6:00 o'clock by his nephew's wife, Eartha L. Clark, and his sister, Josephine Battles. Ms. Clark told Bernett that the police were looking for him in connection with a homicide on Euclid Street, and tried to talk him into turning himself in. After drinking another glass of whiskey, he agreed to accompany the two women to Ms. Clark's apartment.
Between 7:00 o'clock and midnight Bernett remained at the apartment, drinking the entire time, for, in the words of Ms. Clark, "we had to give him a lot of whiskey to keep him there, because otherwise he was going to leave." According to Ms. Clark, Bernett gave them essentially the same version of his altercation with the deceased that he later advanced at trial.
Officer Schleig was met by Ms. Clark outside her apartment, and she explained to him that a man inside was wanted for homicide. The officer accompanied Ms. Clark and she pointed out Bernett, who was seated on the sofa. When asked his name, Bernett blurted out "Jimmy Bernett. I know the police are looking for me. I killed a man at 1441 Euclid Street."
Bernett accepted the officer's invitation to accompany him to the stationhouse, and during the ride he continued to drink from a bottle of whiskey he had taken along. Once in his patrol car, Officer Schleig radioed headquarters to ascertain whether a homicide had occurred that day in the 1400 block of Euclid Street, and whether the police sought a man named Jimmy Bernett. When he received affirmative replies to both inquiries, he pulled the car over to the side of the street and gave Bernett the Miranda warnings.
The warnings were repeated to Bernett by Officer Louis B. Richardson at the stationhouse. After signing a "consent" form, Bernett gave an oral statement to Officer Richardson, but when it was transcribed he refused to sign it. Officer Richardson testified that at the time these events took place, Bernett was drunk.
Bernett was subsequently indicted for murder in the second-degree,
II. THE PRETRIAL SUPPRESSION HEARING
As we earlier indicated, Bernett's trial attorney
First, Officer Schleig testified to the statement Bernett made to him, and said that without doubt Bernett was very intoxicated at the time. Although he spoke in a normal tone, his speech was slurred and, according to the officer, when Bernett volunteered the comment concerning his part in the Euclid Street homicide, Officer Schleig "really didn't believe what was going on because [Bernett] was drunk. I thought he was an ordinary drunk just more or less running off at the mouth." Officer Schleig also testified that Bernett was still drinking in the scout car on the way to the stationhouse.
Next, Officer Richardson testified to events which transpired at the stationhouse approximately half an hour after Bernett and Officer Schleig departed Ms. Clark's apartment. By Officer Richardson's estimate, Bernett had been drinking a lot and was drunk when he signed the Miranda waiver. The officer stated that Bernett had a half-pint bottle of liquor with him when he arrived, but that only a portion of it had previously been consumed.
In argument following the policemen's testimony, the Government claimed that the first admission — to Officer Schleig — was made in a noncustodial setting, and that the second — to Officer Richardson — was given after a willing and intelligent waiver of Miranda rights. Bernett's counsel disputed both contentions. The District Court declined to suppress Bernett's admission to Officer Schleig but held that the one to Officer Richardson must be excluded.
In elaborating on the basis for its rulings, the court explained that when confronted with Bernett's intoxicated condition, police at the stationhouse were under a duty to do more than perfunctorily read him PD Form 47
Defense counsel then inquired whether the court's determination on the admissibility of the first statement — the ruling under attack here — was based on the fact that his client was not in custody when he made it at Ms. Clark's apartment. The court responded in the affirmative, and concluded the suppression hearing. From this it appears that the court's only finding on voluntariness aside from Miranda considerations was with respect to Bernett's divulgences at the stationhouse — the determination made after the Government raised its point on Harris v. New York.
III. VOLUNTARINESS OF THE CHALLENGED ADMISSION
Given the District Court's ruling that, owing to Bernett's intoxication, his second statement — made half an hour after the first — was involuntary, and given also the substantially identical testimony by the two police officers regarding Bernett's drunken condition at the apartment and the stationhouse, I am troubled by the absence of any finding as to the voluntariness of the first statement. But more importantly still, I believe the court's failure to rule explicitly on the voluntariness of the admission challenged here conflicts with the procedural requirements established by the relevant case law. Consequently, I would remand the case to the District Court for an express determination as to whether Bernett was or was not so intoxicated that the first statement was in fact involuntary. My colleagues disagree, however, and the action of the court is affirmance of the District Court's ruling. My own views follow.
A. The Relationship Between Miranda and Voluntariness Issues Generally
I can well understand the District Court's preoccupation with questions of custody, warnings and waiver in conducting the voluntariness hearing, since the Supreme Court's decision in Miranda v. Arizona
Pervasive though its influence has been, Miranda cannot be said to have set all prior case law on the subject of voluntariness for naught. On the contrary, there remain situations where the prior law is still relevant and applicable,
The focal point of any investigation into the voluntariness of an utterance is the mind of the declarant, and the critical inquiry is whether or not in the totality of the circumstances the assertion is the product of a rational intellect and a free will.
Thus it can be readily seen that an inquiry into Miranda issues is not coextensive with an investigation of voluntariness generally. If the accused's powers of reason and volition are impaired, the question whether he was in custody when he spoke is irrelevant. And even the most patient and thorough explanation of constitutional rights will not make admissible the confession of one whose mental faculties are so blunted by alcohol, drugs or insanity that he cannot be said to have given it voluntarily with understanding. The Miranda requirements are a means of insuring within the limited ambit of custodial questioning that accused persons will be fully informed of their rights, and will knowingly and intelligently choose to relinquish them before making statements
B. The Voluntariness Problem
At the pretrial suppression hearing, Officer Schleig described Bernett as unquestionably intoxicated when the officer responded to Ms. Clark's call. Indeed, when Bernett began speaking, Officer Schleig was prepared to dismiss his remarks as those of "an ordinary drunk just more or less running off at the mouth." The explanation for Bernett's inebriated condition was provided by Ms. Clark, who revealed at trial that in order to persuade him to remain at her apartment, it was necessary to ply him with whiskey for five hours until the police arrived. Moreover, Bernett said he had been imbibing at a club before he was found by Ms. Clark and, according to Ben Smith, he had also participated in a round of drinking at the Euclid Street apartment that morning. Thus, the record yields substantial evidence that Bernett was very inebriated when he confessed his involvement in the homicide to Officer Schleig.
That alcohol consumption may reach such a level as to impair the voluntariness of an incriminating confession has been settled law in this jurisdiction for some time. While our early cases spoke in terms of drunkenness which "goes to the extent of mania,"
C. Voluntariness: What Does It Mean?
"The ultimate test" of admissibility of confessions, said Justice Frankfurter, "remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness."
The meaning of the term is neither simple, single nor exact.
In particular fact patterns, two or more of the four interests the Supreme Court identified in Blackburn may be implicated. That does not suggest to me that these values are necessarily so interrelated that they can exert force only in unison. On the contrary, I think, abrogation of any one of them will suffice to render a confession inadmissible even if none of the other three is infringed. No untrustworthy statement is admissible even if freely made by a rational person, without even so much as a hint of police coercion.
D. Rationality and Free Will
The definitional elusiveness of "rationality" and "free will" as concepts has not impeded the Supreme Court in the recurrent use of those terms and similar expressions in opinions dealing with voluntariness.
When evidence of mental illness,
In Gladden v. Unsworth,
One factual aspect of Gladden v. Unsworth renders it particularly relevant to the case before us. Like the statement challenged here, the incriminating admissions in Gladden were completely spontaneous;
As previously observed, the Supreme Court, in Blackburn v. Alabama,
That proposition has not always been clear, however. It was limited in some of the earlier confession cases,
Thus, reliability of incriminating statements is explicitly outlawed as an element in the determination of constitutional voluntariness, and that doctrine is consistent with and is reflected in the constitutional prohibition against applying the harmless error rule in involuntary confession cases.
F. Custody and Voluntariness
Even a cursory look at the cases treating involuntary confessions reveals that they almost invariably involve statements made while the accused is in custody or is about to be taken into custody. There is a simple explanation for this. As a practical matter, guilty admissions made to persons other than law enforcement officials often do not come to the attention of prosecutors. When they do, the closest examination of the surrounding circumstances frequently fails to disclose any sign of involuntariness. Consequently, the bulk of the incriminating statements aired in court-rooms are made at least in the presence of police officers, whether or not the accused in formally in custody.
It has long been the rule that the mere fact that an accused is in custody and subjected to police questioning is not sufficient to raise a voluntariness issue.
Moreover, cases which did not involve custody in the strict sense have indicated that voluntariness questions may well arise where there is nothing more than the presence of and perhaps some questioning by police officers. Thus in Jackson v. Denno,
In my view, the circumstances of Bernett's case are not sufficiently dissimilar to those in Jackson, Pea and Gladden to exempt him from the due process protection of the voluntariness doctrine. Neither Jackson, Pea nor Unsworth was in custody in the sense of being under the control of law enforcement officials in the potentially intimidating setting of a police arrest or a police stationhouse. And yet, in the case of Pea, the incriminating statements were held to be involuntary; and in the cases of Jackson and Unsworth, a serious question as to voluntariness was found to exist. These cases strongly suggest that a court is not precluded from finding that such a problem exists with respect to Bernett's admission simply because he was not yet in custody at the time he spoke to Officer Schleig. I would hold that Bernett's claim of involuntariness is not diminished by the fact that his admission to Officer Schleig was made spontaneously before custody was assumed, and was not in any way induced by the officer.
G. Judicial Inquiry and Determinations as to Voluntariness
Because of my difficulty with the District Court's handling of the sensitive issues involved,
Sims treated the problem of a post-Jackson confession which was allowed to go to the jury without any evidence in the record that the trial judge had made a preliminary finding on the voluntariness question.
The Second Circuit has succinctly outlined the initial steps to be taken in complying with Jackson and Sims where evidence of impaired volition is present:
To this I would add, perhaps unnecessarily, that the "unmistakable clarity" mandated in Sims
If a district court finds involuntariness, a challenged confession or admission, together with its fruits,
Having concluded that the District Court did not fully analyze and resolve all aspects of Bernett's involuntariness claim, I now must examine the Government's assertion that the failure amounts at most to harmless error.
H. The Impact of the Ruling
The Government's harmless-error argument is that, in view of Ms. Clark's
Prior to the Supreme Court's decision in Chapman v. California,
So, while conceding the possibility that "some constitutional errors" in the setting "of a particular case" could be so "unimportant and insignificant" as to be innocuous, the Court in Chapman took pains to point out that its prior decisions indicated that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error."
And in a footnote, Justice Stewart further points out:
What this court is called upon to do in this case is to discharge the difficult but nonetheless commonplace judicial task of applying available precedents to a situation factually variant from nearly all those to be found in the case reports. This is always demanding, and is never to be undertaken without maximum care and thought. I cannot believe that the constitutional doctrine of voluntariness in criminal confessions would suffer distortion from a holding that where the facts reveal that a suspect is grossly intoxicated at the time he makes an incriminating statement, there should be a specific determination as to whether his reason and will were so impaired by alcohol—just as they might be by drugs, madness, or police-induced coercion— that his words were not voluntarily spoken. My research has led me to but few cases holding a statement made under such circumstances inadmissible,
IV. THE FAILURE TO CHARGE THE JURY ON THE CHALLENGED ADMISSION
We must now turn our attention to Bernett's second complaint on appeal: the failure of the District Court to instruct the jury concerning either the voluntariness of, or the weight to be given to, Bernett's incriminating admission to Officer Schleig. If this omission amounted to prejudicial error, Bernett is entitled to a new trial. My colleagues and I hold unanimously that the omission was error, but in the circumstances was not harmful to Bernett.
The Supreme Court, in its treatment of voluntariness questions, has deemed either of two procedures—the so-called "Massachusetts" rule and the "orthodox" rule—to be constitutionally acceptable for resolving such claims.
In the past, our circuit followed the Massachusetts rule, with the judge instructing the jury to redetermine the voluntariness question after the judge had initially resolved it, and admonishing the jurors to discount the statement in their deliberations unless they found it voluntary beyond a reasonable doubt.
This was the applicable procedure at the time Bernett was tried.
The record before us reflects that the District Court followed neither the Massachusetts nor the orthodox rule in instructing the jury at Bernett's trial. The charge made no mention whatever of the admission to Officer Schleig, and defense counsel neither requested the court to instruct the jury on that matter nor objected to its failure to do so. We are mindful of the general rule that "[n]o party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires. . . ."
The point of departure in distinguishing nonconstitutional errors which are prejudicial from those which are merely harmless is Kotteakos v. United States.
From the outset we bear in mind the important role of jury instructions in the criminal trial. These "vital cogs in the federal judicial machinery"
At trial, Officer Schleig related that when Bernett was asked his name, he replied, "Jimmy Bernett. I know the police are looking for me because I got in a fight over at 1441 Euclid Street. I hit the man twice with the stool leg, once in the forehead, once behind the head. I think I killed him."
Whichever of the three versions of Bernett's incriminating concessions the jury chose to believe, it amounted to little more than a succinct summary of his own testimony at the trial. The only conflict between Bernett's statement, as variously recounted by the witnesses, and Bernett's self-defense account was that he claimed he struck his victim once while Officer Schleig said that Bernett acknowledged striking him twice.
Beyond that, it is of course quite possible, on the other hand, that the jury gave less than full weight or perhaps no weight at all to the statement, even without the benefit of an instruction that they could discount it if they chose.
In sum, it appears that even in the unlikely event that the jury felt bound to accept the challenged statement at face value because they were not instructed that they could give it less weight, we cannot believe that Bernett's remarks to Officer Schleig worked to the detriment of his defense. And given the general understanding of jurors' prerogatives, the evidence of Bernett's drunkenness, and the admonition of the court that then jurors weigh all the evidence, it is improbable that they were unaware of their power to accord less than full weight to the impugned statement, and they may well have chosen to do so. Unable as we are to isolate any real chance that the error committed here substantially affected Bernett's rights at trial, we must conclude that the court's failure to instruct the jury as statutorily required was harmless.
In reviewing this case, we have identified problems as to the District Court's ruling on the admissibility of Bernett's oral statement to Officer Schleig. We do not disturb the trial court's finding that it was made in a noncustodial setting, and a majority of this court is of the view that the voluntariness inquiry properly terminated with that finding, and that the ruling is to be affirmed.
Although we find error in the District Court's failure to comply with the statutory procedure for charging the jury on the weight to be given a confession, we all conclude that Bernett suffered no prejudice as a result of that omission.
The judgment of conviction appealed from is accordingly
WILKEY, Circuit Judge, with whom JAMESON, Senior District Judge, concurs:
We hold that defendant Bernett's statement in response to Officer Schleig's inquiry, "What is your name," was made in a non-custodial setting, was uncoerced, and therefore could not have been involuntary within the meaning of the decided cases. The District Judge's ruling admitting the statement into evidence was therefore correct and provides no ground for reversal.
Any analysis of the possible constitutional issues presented must turn on an acute appreciation of the situation as it appeared to the District Judge on uncontradicted evidence. Bernett's blurted drunken confession took place before any police interrogation, save a request for his name. It took place before he was placed in anything resembling custody. There was absolutely no evidence or allegation of coercion; and the policeman's presence in the room was solicited by a private party rather than the result of an official investigation.
The police officer was asked in by Mrs. Clark; but he specifically testified that neither this, nor any other circumstances, raised anything in his mind approaching official focused suspicion on Bernett. The policeman did ask Bernett his name, which hardly amounts to more than a preliminary inquiry. It does not reach the level of interrogation which would either require a Miranda warning or which would amount to subtle official intimidation. Mrs. Clark did supply Bernett with alcohol, which probably served to keep him within range of the police and to dull his ability to protect himself against the urge to confess. There is no question that police action of this sort would amount to "coercion" in some sense, despite the fact that it was Bernett's choice to imbibe the proffered refreshment, but Mrs. Clark's action was not police action.
In short, there was no evidence of the sort of state inquisition or coercion which would normally result in exclusion of a confession. Given these undisputed facts, the defendant's plea for a reversal and remand for clarification necessarily implies some sort of constitutional right not to have one's case blown by internally generated guilt, fear, stupidity, or drunkenness.
II. The Constitutional and Other Issues
The basis for the constitutional doctrine that involuntary confessions are inadmissible in federal court is the Fifth Amendment privilege against self-incrimination. The language of the self-incrimination clause, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself
It becomes clear that Bernett's confession, on the undisputed facts, could not have been generated by constitutionally impermissible coercion. On the rationale of all the Supreme Court decisions in this field, it could not, therefore, have violated his constitutional right not to be compelled to be a witness against himself in a criminal case.
What the defendant contends for on this appeal is a far-reaching and quite novel principle—namely, that a pre-custody, non-coerced inculpatory statement is constitutionally inadmissible in a criminal action unless the trial judge first finds, in a separate hearing, that it was "the product of a rational intellect and a free will."
Since there was absolutely no allegation or evidence of coercion, nor was there at the time of the incriminating statement any custody, the "voluntariness" finding, which the defendant asserts as an indispensable prerequisite of the admission being admissible, must amount to a required finding that the appellant made a "rational" and "freewill" decision to talk in a non-custodial situation. To state this principle as a prerequisite to admissibility is to recognize how fundamentally different such a principle would be from the circumstances and holding of any previous case cited in its support. For it is hard to see how such a decision to make the statement appellant made here could ever, in a lawyer's terms, be "rational" in a non-custodial situation.
While rationality might be highly relevant if the appellant's comments were made in a situation of attempted compulsion, and thus amounted to a waiver of his right to be free from compelled self-incrimination, he was not so compelled here. We have no question of a waiver of his rights against attempted compulsion, because there was not a shadow of compulsion at the time Bernett blurted out his first statement. This is to be contrasted with the statement he later made while in police custody and in response to police questioning, which the trial court suppressed, an action whose supporting rationale is clearly derived from Miranda
With regard to the trial court's action in the suppression hearing, the defendant complains on this appeal that the District Judge's inquiry re the first statement stopped short with his conclusion that the situation was non-custodial, accordingly that Miranda warnings were not required, and that he gave almost no consideration to the question of
B. Due Process
Another line of argument would suggest that the statement was potentially excludable, and therefore a basis for requiring resolution of the drunkenness issue, as a matter of due process, rather than self-incrimination. Although it is possible that admission of certain highly unreliable evidence with great potential for prejudice could be a violation of fundamental fairness, there was absolutely no indication that Bernett's statement was in fact unreliable, or that his condition rendered it so. Statements made by intoxicated persons are not per se unreliable.
Finally, one strand of the "due process" argument might suggest that it is just too unfair to "take advantage" of one in appellant's condition. Keeping in mind that there was absolutely no element of state questioning or coercion, that rationale would soon lead to the conclusion that "the criminal has blundered badly, so he must go free."
The question Bernett raised in the District Court, and is before us here, although he termed it "voluntariness" in order to bring his issue within the terminology of a constitutional issue, is really much broader than the constitutional question of voluntariness. The question raised by Bernett is really a question of trustworthiness, whether he was sober enough (or drunk enough) to be telling the truth.
Trustworthiness is not a constitutional question at all; it is the classical question for the jury, under adequate instructions of course, unless the evidence is so blatantly unreliable that it should be excluded on the grounds of competence or prejudice. Voluntariness is a constitutional question, but voluntariness is only one particular factor which analytically is included in the broader concept of trustworthiness. What the defendant seems to be urging here is an expansion of the constitutional underpinnings of voluntariness to a breadth sufficient to support a constitutional challenge to any ruling on evidence relating to any element bearing on its trustworthiness. This vastly broader constitutional issue the decided cases— in language and in factual situation— definitely do not support.
III. The Limits of Previous Precedent
Although many of the cases in this area have involved very broad language, their facts and rationales do not support
The landmark case of Jackson v. Denno
Similarly, Sims v. Georgia,
The most far-reaching language in this area, which purports to establish a requirement for a valid confession of "a rational intellect and a free will," stems from Blackburn v. Alabama.
The overriding importance of coercion, in either overt or subtle form, is again and again made clear by close analysis of the facts in cases which have excluded confessions or required clearer findings of "voluntariness." Townsend v. Sain
If we turn from outside coercion as the decisive factor, language in these cases which concerns the rationality of the suspect as an internal matter almost always goes to the validity of a purported waiver of the right not to answer police questions—the sort of "waiver" which was not present in Bernett's case, and, on the facts, could not have been, thus making its absence irrelevant. In Guaydacan the drugged state of the suspect became relevant as an argument against the validity of the Miranda warnings, which he had to be dragged up off the floor to receive. In United States v. Silva
Particularly because of the imprecision of the shorthand used in such cases, it is possible for the notions of uncoerced confession and voluntary waiver to blur together when the only fact distinguishing the suspect from Bernett is arrest or custody, for arrest and custody can both make proof of an uncoerced confession necessary and also set the stage for the existence of a waiver being possibly relevant.
Similarly, the existence of prior police questioning, and the focusing of suspicion, puts the suspect in a different position, more likely to be coerced in subtle ways and therefore more in need of protection against irrational waiver of the right not to be so coerced, from one on whom suspicion has not yet focused. In United States v. Robinson
In Bernett's case, when Officer Schleig found out by his police radio that there had been a homicide at the address given by Bernett, and that there was a bulletin to bring Bernett in for questioning, the officer immediately pulled the car over to the curb and gave Bernett the Miranda warnings. Suspicion had then focused on Bernett; if there were to be a statement later admissible in evidence, it had to be a voluntary statement, i. e., a knowing waiver of Bernett's rights in the situation which had by then developed.
There are several cases which, at first glance, appear to offer more support to the defendant's position than do those discussed above. In Eisen v. Picard
On its face, the broad language of United States v. Robinson
Most nearly in point is the dicta of Gladden v. Unsworth.
IV. Policy Behind the Constitutional Issues
Since it is clear that the relevant case law does not support, much less require, the result contended for by the defendant, we turn to an analysis of general principles and policies. Even if it is assumed that a remand would produce a clear finding that Bernett was as drunk as one can be and still utter inculpatory statements, it remains unclear why those statements should be constitutionally inadmissible under either a self-incrimination or due process rationale.
The literal terms of the self-incrimination clause go to the right not to be compelled to be a witness against oneself. The natural reading of this clause implies that it covers external compulsion, since the framers' concern was
Since there was no such police misconduct in Bernett's case, exclusion of his statement could not even serve its increasingly dubious role as a deterrent.
The various notions which make up the concept of due process and fundamental fairness also fail to require exclusion. Without judicially adopting the rule "in vino veritas," we find no proof here establishing the contrary, i. e., no indication that Bernett's statement was unreliable or that his condition rendered it so. While drink may lower caution as to truth in statements about others, it also lessens judgment as to self-protection concerning statements which strike closer to home. In that sense, it is probably true that a drunkenly blurted confession fails to conform to some abstract notion of free will; but it is also true that self-condemnation is rarely "rational" even though uncoerced.
It could be said that, by allowing use of Bernett's statement, the law is "taking advantage" of a man who was not at his best; but the same is true every time any carelessly mislaid piece of inculpatory evidence is introduced. Admission of this statement is no more prejudicial to Bernett's right to remain silent at trial than would be the introduction of a revolver with his name stamped on it which he had left at the scene. Perhaps most importantly, exclusion of such statements would destroy the usefulness of the criminal's guilty and indiscreet candor in the process of law enforcement. Of course such candor should not be coerced; but if it is offered up before the conscientious policeman can even reach for his Miranda warning form-card, the law cannot and should not look the other way.
V. "Voluntariness" or "Trustworthiness" as a Non-Constitutional Issue
As shown above, we think the issues here do not involve constitutional principles of self-incrimination or due process. Rather, Bernett's drunkenness at the time of blurting out the damning words raises questions of competence, prejudice, or trustworthiness, nothing more. Therefore, at worst, the trial court's handling of the matter could amount to (1) an abuse of discretion in ruling on the competence of Bernett as the utterer of the statement; (2) an abuse of discretion in weighing relevance against potential prejudice; or (3) a violation of the procedural requirements of 18 U.S.C. § 3501. Given the current trend towards allowing the introduction of nearly all evidence for whatever it is worth, it seems unlikely that Bernett could be held fatally incompetent when he could still speak intelligibly and give verified detail. In any case, there is no need for either findings or clarity as to this issue. The trial
Likewise, the issue of just how drunk Bernett was has bearing on the trial court's discretionary balancing of the probative value of evidence against its likely prejudicial effect. Once again, all the signs point to reliability and any prejudice results from just that fact.
It is also conceivable that failure to resolve the drunkenness question violated the procedural requirements of 18 U.S.C. § 3501 (1970). That statute provides that "the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness." Since this provision was a Congressional attempt to expand the use of confessions, and because it self-consciously drew on established judicial language, it can be argued that the "voluntary" standard included therein goes solely to coercion, except as supplemented by notions of rational waiver after confrontation. A contrary reading appears, however, from the provisions of § 3501(d):
This subsection could be read to imply that a confession could be held to have been involuntary even if given spontaneously, before custody, and without the normal sorts of coercion. On the other hand, this subsection can be read as a broad exception to the procedural requirements of § 3501, waiving the need for prior judicial determination as to pre-custody spontaneous statements. Given the background and purpose of the statute, the latter is what Congress meant, and we so hold.
Without attempting to explicate in full our reasons for holding there was no error on these last three points, it is sufficient to note that all of these issues on which drunkenness might be relevant raise only a spectre of error which contains no constitutional substance. To the ectoplasm of these possible trial court mistakes the harmless error rule would apply, so we reach a result here parallel to that in Judge Robinson's opinion (Part IV) on the issue of instructions.
The conviction is
On Appellant's Suggestion for Rehearing En Banc
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
Appellant has filed a suggestion for rehearing en banc. On consideration thereof, it is
Ordered by the Court en banc that the suggestion for rehearing en banc is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
STATEMENT OF CIRCUIT JUDGE LEVENTHAL AS TO WHY HE HAS VOTED TO DENY REHEARING EN BANC
1. Although I am voting to deny rehearing en banc, I have doubts concerning that part of Judge Wilkey's opinion for the panel which states that a constitutional challenge against receipt in evidence of an admission to the police for lack of voluntariness is conclusively
Here there was no misconduct whatever on the part of the police, but the constitutional challenge does not necessarily require this. The verbal formulae differ somewhat from case to case, but the precedents converge in rejecting the notion that minimum fairness is satisfied, and that is the underpinning of due process, when a conviction is based upon the receipt in evidence of an admission made to the police under circumstances when the defendant lacked any significant measure of free will. See Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960): "[T]he evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane." 361 U.S. at 207, 80 S. Ct. at 280. Would Chief Justice Warren's premise of outrage be removed if the hapless incompetent confessed to the police in a non-custodial setting or in answer to a generalized question? Later, the Court expressly said it was "not significant" that questions by the police may have been asked by persons unfamiliar with hyoscine's properties as a "truth serum." Townsend v. Sain, 372 U.S. 293, 307-309, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963). In Pea v. United States, 130 U.S.App.D.C. 66, 71, 397 F.2d 627, 632 (1968) we said: "It must be shown that in fact the confessor had a free will and intellect whether or not the detective had any reason to doubt its presence or suspect its absence."
As to drunkenness as a condition that may negative voluntariness, there is a difference in degree that is significant (see point 3), but not a difference in kind,
2. Judge Wilkey soundly points out the facts of the decided cases generally involved persons in some kind of custody or coercive-type police questioning.
Suppose a police officer puts a question of the kind put to a citizen generally in an investigation (see note 2) as distinguished from a focused suspect? Is his position completely irrelevant in causing people to respond? There may be a responsibility of government to
It is one thing for a criminal to blunder by leaving behind a weapon or fingerprint. But as pointed out in Pea, a testimonial statement must be distinguished from inanimate evidence for it is presented in the case as "the unique evidentiary contribution of `an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.'"
3. However, this case on its facts is simply not a suitable vehicle for exploration of these issues. As Judge Wilkey's opinion points out, in concluding that in this case the trial court did not abuse his discretion, "it seems unlikely that Bernett could be held fatally incompetent when he could still speak intelligibly and give verified detail." (at 971). In saying that exclusion is not required by concepts of fundamental fairness the panel noted there was "no indication that Bernett's statement was unreliable or that his condition rendered it so."
Even my reservations as to a constitutional claim assume some kind of government involvement at the time of the statement (though not necessarily coercive questioning). Whatever limitations are placed by the Constitution they are at lowest ebb in the case of a spontaneous exclamation, for example to a crowd that happened to include a detective, or even a policeman, unbeknownst to the declarant. This is not that case, but it is close; the police only asked, What's your name?
While the trial judge's approach seems to have been focused on the presence or absence of custody because of the Miranda portion of the challenge of defense counsel, his failure to focus expressly on the voluntariness issue apparently reflects a view that the facts of this case, taking the limited condition of drunkenness together with the absence of custodial restraint, did not raise a substantial question of voluntariness. While "unmistakable clarity" is contemplated by Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), that was in a setting of disputed trial testimony, and even so the Court refrained from requiring formal findings of fact.
In the case of a condition as widespread as drunkenness, there is room for a high threshold. Many people who are very drunk indeed retain sufficient voluntariness for basic volitional capacity,
I take the present case as one where the court is affirming a ruling by the trial judge that, on the particular facts, including the defendant's condition, the innocuous police question and absence of custody, there was no substantial doubt as to voluntariness.
See also Opper v. United States, 348 U.S. 84, 91 n. 7, 75 S.Ct. 158, 99 L.Ed. 101 (1954). It is immaterial whether Bernett's statement to Officer Schleig is viewed as a confession or as an admission, for the standards governing its voluntariness and admissibility are the same. See Miranda v. Arizona, supra note 10, 384 U.S. at 476, 86 S.Ct. 1602; Jones v. United States, supra, 111 U.S.App. D.C. at 280, 296 F.2d at 402; Gladden v. Unsworth, 396 F.2d 373, 375-376 (9th Cir. 1968). We note, too, that the federal statute which now deals with the admissibility of confessions embraces "any self-incriminating statement." Omnibus Crime Control and Safe Streets Act of 1968, Pub.L.No.90-351, tit. II, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501(e) (1970), quoted infra at note 89.
It cannot be doubted that the Due Process Clause of the Fifth Amendment safeguards against all that its counterpart in the Fourteenth bans. Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Bowles v. Willingham, 321 U.S. 503, 518, 64 S.Ct. 641, 88 L.Ed. 892 (1941); Agnello v. United States, 269 U.S. 20, 33-34, 46 S.Ct. 4, 70 L.Ed. 145 (1925). This is not to suggest, however, that the Due Process and Self-Incrimination Clauses stake out the same boundaries. Cf. 8 Wigmore, Evidence § 2266 at 401 (McNaughton rev. 1961). For one thing, the latter is directed specifically against compelled testimonial disclosure, and the former more broadly against fundamentally unfair trials. I do say, however, that one accused of crime is at liberty to draw upon them both. And it is to be remembered that however one may feel about the circumstances surrounding the utterance in issue in the case at bar, the Government made full use of it at Bernett's trial.
Id. 361 U.S. at 207, 80 S.Ct. at 280. Compare Jackson v. Denno, supra note 37, 378 U.S. at 376-377, 385-386, 84 S.Ct. 1774; Rogers v. Richmond, supra note 31, 365 U.S. at 540-541, 81 S.Ct. 735.
Id. (footnote omitted).
Similarly, in Gilpin v. United States, supra note 27, the appellant was arrested for public drunkenness and taken to jail. While being fingerprinted he indicated a desire to speak to one of the arresting officers, and he then blurted out that he had stolen a United States mail bag. The trial court held that this spontaneous confession, while not the result of any prompting by police, was nevertheless inadmissible because Gilpin was so intoxicated that "his will was overborne," 415 F.2d at 640. This determination was left undisturbed on appeal—from the admission of other confessions—and the Court of Appeals further pointed out that the police had no duty to give Gilpin Miranda warnings when he said he wanted to speak with the policeman immediately prior to admitting his theft of the mail bag. Id. 386 U.S. at 639, n. 2, 86 S.Ct. 1602. What Gilpin teaches, then, is that an unsolicited spontaneous confession, given in a setting in which the police were not even required to administer Miranda warnings, may still be excluded as involuntary if the accused was in such a state of gross inebriation that his reason and free will were overridden.
See also Eisen v. Picard, supra note 27, where the mentally suspect appellant made damaging pre-custody admissions to friends as well as in-custody admissions to police, all of which came into evidence at his trial. The court recognized the problem as to the former but in view of its reversal on other grounds, did not reach the question whether the voluntariness standard was applicable to the noncustodial statements.
Id. at 544, 81 S.Ct. at 741.
We are mindful that this exception in the harmless error doctrine is narrow. Immunity from the application of that doctrine is accorded only to defects which result in the admission into evidence of confessions which are either involuntary or seriously questionable. The exemption does not extend to nonconstitutional errors however closely related to a confession. Thus, for example, where we discern a flaw in a jury charge concerning a confession allowed into evidence, we are not foreclosed from concluding that the error was harmless if the facts warrant such a conclusion. See Part IV, infra.
In Pea the court said that a condition of concussion, with a bullet lodged in a man's skull, was the "equivalent" of a truth drug "so far as effect on free will is concerned" 130 U.S. App.D.C. at 72, 397 F.2d at 633.