HENDERSON, Circuit Judge:
James H. Sullivan, Jr., the petitioner-appellant, appeals the decision of the United States District Court for the Northern District of Alabama denying his petition for a writ of habeas corpus. 28 U.S.C. § 2254. He asserts that his trial in the Alabama state court was constitutionally flawed by the admission into evidence of his statements made to police officers and by comments of the prosecution at trial. After reviewing the record, we find no error and affirm the district court.
At approximately 6:00 p.m. on March 27, 1975, James Sullivan walked into the Jefferson County jail in Birmingham, Alabama. Deputy W. B. Miller of the Jefferson County Sheriff's Office was working at the front information desk. When Miller saw him, the petitioner was mumbling and repeating to himself, "I have done something terrible, it is awful." Trial Transcript at 59, Alabama v. Sullivan, No. 34264 (10th Judicial Circuit Court for Jefferson County, Dec. 11, 1975) (hereinafter referred to as "Trial Transcript"). Petitioner repeated this statement several times and was obviously very upset, distraught and emotional. Miller asked Sullivan his name and the nature of his problem, but Sullivan did not answer. Deputy Miller then summoned Sgt. Joseph Gardner. When Sgt. Gardner arrived, Miller related his previous conversation with Sullivan and stated that Sullivan had requested to talk to someone. Trial Transcript at 56. Gardner then ushered Sullivan into his office, and, without initially advising Sullivan of his Miranda rights, began to converse with the petitioner. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The following account of the exchange between Gardner and Sullivan appears in the opinion of the Alabama Court of Criminal Appeal:
Sullivan v. State, 351 So.2d 659, 663 (Ala.Cr.App.1977) (footnote added).
Sullivan was charged with first degree murder. Prior to the trial, he was transferred to a mental hospital for four months. After a jury trial in the Circuit Court for the Tenth Judicial Circuit of Alabama, he was convicted of first degree murder and sentenced to life imprisonment. His unsuccessful appeal followed, Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.1977), and both his request for a rehearing and petition for certiorari to the Alabama Supreme Court were denied. Ex parte Sullivan, 351 So.2d 665 (Ala.1977). The United States District Court for the Northern District of Alabama subsequently denied Sullivan's petition for a writ of habeas corpus, 28 U.S.C. § 2254. He then filed a notice of appeal to this court.
384 U.S. at 478, 86 S.Ct. at 1629, 16 L.Ed.2d at 726 (footnote omitted). In United States v. Savell, 546 F.2d 43, 46 (5th Cir. 1977), the Fifth Circuit Court of Appeals reiterated this view in stating that the Miranda rule "does not reach a situation ... where the statements were unsolicited, spontaneous and freely made prior to any attempted interrogation." Sullivan walked into the sheriff's office of his own free will. Any comments or declarations made at that time were clearly volunteered and not the result of a custodial interrogation. Thus, the Miranda rule was inapplicable and no warning was required.
Likewise, the statements made by Sullivan while he was in Sgt. Gardner's office were voluntary and not the product of a custodial interrogation. The Miranda Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. A custodial interrogation is to be distinguished from the "traditional investigatory functions" of police where the compulsive atmosphere triggering Miranda is absent. See Miranda, 384 U.S. at 477-78, 481, 86 S.Ct. at 1629, 1631, 16 L.Ed.2d at 725-7; United States v. Montos, 421 F.2d 215 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). The pre-Miranda conversation between Sgt. Gardner and the petitioner does not reveal any of the significant restraint of freedom characteristic of a custodial interrogation. Sgt. Gardner had no indication of the commission of a crime. In fact, he suspected that Sullivan might have a drug problem. His initial inquiry was merely an attempt to investigate and probe the situation. Sullivan was not under arrest; he remained at the station of his own accord and freely answered the questions asked of him.
As the second prong of this argument, Sullivan insists that the pre-Miranda statements were involuntary because of his mental incompetency or insanity. It is settled that statements or confessions made during a time of mental incompetency or insanity are involuntary and, consequently, inadmissible. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Blackburn v. State, 80 S.Ct. 274, 361 U.S. 199, 4 L.Ed.2d 242 (1960). In deciding the ultimate issue of voluntariness, though, we may substitute our independent judgment after a review of the entire record. Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 and 450 U.S. 1014, 101 S.Ct. 1724, 68 L.Ed.2d 214 (1981). See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 434, 97 L.Ed. 469 (1953) (opinion of J. Frankfurter). Voluntariness is premised on the totality of the
The second claim of error focuses on the statements made after Sullivan was advised by Sgt. Gardner of his Miranda rights. If interrogation continues without an attorney after the defendant has been warned, the government must show that the defendant made a knowing, voluntary, and intelligent waiver of his rights. Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724. When Sgt. Gardner surmised that a crime might have been committed, he advised Sullivan of his Miranda rights. The petitioner waited several minutes and then resumed the conversation by asking to write a note. Sgt. Gardner then asked more questions, although he never formally arrested Sullivan. In United States v. Savell, 546 F.2d at 45-6, the defendant was under arrest and received an incomplete Miranda warning. Afterwards, the defendant began a conversation with the police. The Fifth Circuit Court of Appeals viewed the statement as spontaneous and refused to find that this sequence of events constituted a custodial interrogation. Thus, Miranda was not controlling and despite the inadequate warning the statements were admissible. Comparing the facts of Savell with those here, it is evident that no custodial interrogation ever materialized. Therefore, there was no necessity for a Miranda warning.
But even if the sequence of events following the Miranda warning could be characterized as a custodial interrogation, it is apparent that Sullivan voluntarily and knowingly waived his rights. Whether a valid waiver of constitutional rights was made is a question of law for consideration on appeal. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Although a waiver cannot be presumed from a silent record, Miranda, 384 U.S. at 475-6, 86 S.Ct. at 1628, 16 L.Ed.2d at 724, it need not be explicit and can be inferred from the totality of the circumstances. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); United States v. Cavallino, 498 F.2d 1200, 1204 (5th Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). The conduct of the accused is only one factor in evaluating the validity of a waiver. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Sullivan was obviously emotional and distraught during the questioning. However, the Alabama Court of Criminal Appeal found the other circumstances to include
After a review of the record, we agree with the Alabama appellate court and the district court that Sullivan made a knowing, voluntary, intelligent waiver of his constitutional rights.
Finally, Sullivan complains of improper prosecutorial comment on his choice to remain silent, in disregard of his rights under the Fourteenth Amendment. This ground of error finds its support in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), in which the Supreme Court held that due process proscribes comment or reference to a defendant's silence as evidence of guilt or for impeachment purposes. In Doyle the prosecution's comment on the defendant's silence occurred during the cross-examination of the defendant. In this case, Sullivan objects to the initial segment of the prosecutor's re-direct examination of Sgt. Gardner. In the cross-examination of Gardner, defense counsel elicited the fact that Sullivan had never actually admitted killing his wife. Then, on re-direct examination by the state prosecuting attorney, the following exchange took place:
Trial Transcript at 52-53.
The state maintains there was no Doyle violation. Since Sullivan had not testified at the time Gardner was examined, the state asserts that the testimony could not have been used for impeachment, as was the case in Doyle. The state also emphasizes the fact that the objection was sustained. The district court expressed an inclination to agree with the state. Record at 148-9. In Chapman v. United States, 547 F.2d 1240, 1242 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), the defendant had yet to be called as a witness when the prosecutor asked the investigating officer if the defendant had said anything after receiving the Miranda warning. The Fifth Circuit Court of Appeals found that these facts constituted a Doyle violation. Viewing the transcript in its true light, see footnote 4, we note that
In spite of this transgression, we are required to apply the harmless error standard. See e.g., United States v. Dixon, 593 F.2d 626 (5th Cir.), cert. denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82 (1979); United States v. Meneses-Davila, 580 F.2d 888 (5th Cir. 1978); Chapman v. United States, 547 F.2d at 1247-8; United States v. Davis, 546 F.2d 583 (5th Cir.), cert. denied 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). In Chapman, the court attempted to establish categories of Doyle violations in an effort to weigh the effect of error. Chapman v. United States, 547 F.2d at 1249-50. Subsequent cases acknowledge that some situations do not neatly fall into one of the Chapman types, and thus the determination of harmless error must be made on a "case by case basis." United States v. Dixon, 593 F.2d at 629; United States v. Meneses-Davila, 580 F.2d at 890; United States v. Davis, 546 F.2d at 594-95 n. 31. "The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt." United States v. Meneses-Davila, 580 F.2d at 890. With these guidelines in mind, we conclude that the Doyle violation in this case was harmless error. Sullivan had not yet testified and the prosecutor could not have directly related Gardner's testimony to the petitioner's story for impeachment purposes. After this one reference, there was no further mention of Sullivan's silence. It could be said that the comment by the witness was not necessarily an observation of Sullivan's exercise of his constitutional right, but merely a statement that he didn't want to discuss the matter. See United States v. Dixon, 593 F.2d at 629-30 (five-point analysis for a determination of harmless Doyle error). Moreover, in light of the many incriminating statements made by Sullivan, there was strong evidence of his guilt. The objection was sustained and even though the trial court gave no curative instructions, no request was made. Accordingly, the failure to grant a mistrial was harmless error.
The judgment of the district court denying the writ of habeas corpus is