its acceptance of the position here argued.
(b) To support his contention that he was constitutionally entitled to counsel's presence during his confrontation with Lt. Daly in the D.C. Jail on October 26, defendant maintains that it was a 'step in the proceedings against him' -- contending that if it was, Supreme Court cases since Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, made counsel's presence mandatory. To support this position he argues, first, that the discussion was an 'interrogation' by an arm of the prosecution; and further, that even if it was not, his conclusion must still be upheld. For purposes of the arguments, defendant accepts, as he must, the jury's conclusions, implicit in its verdict, that the confession was in fact given, that it was voluntary, and that it was trustworthy, and the Court's conclusion that it was 'independent' of the invalid first confessions.
First. Defendant does not maintain that the Sixth Amendment invalidates every post-commitment confession made by an accused in the absence of counsel. He concedes the unimpeachability of a confession voluntarily given in such circumstances to a visitor or cellmate, or one spontaneously made to a jailer or even a policeman. Rather, defendant's initial contention is that the moment one who is an 'agent' of the prosecuting authorities asks a single question about an alleged crime, an 'interrogation' or 'inquisition' is begun which is a 'step in the proceedings against him' and at which counsel's presence is constitutionally required.
Assuming, arguendo, defendant's conclusion that were this post-commitment confrontation an interrogation, counsel's presence would be a constitutional right, the Court rejects this line of argument because, in its opinion, the basic premise is incorrect; the confrontation was not an interrogation.
As the statement of facts demonstrates, the circumstances were not those of an interrogation. Though defendant was in custody, the interview occurred in a location observable by other than the authorities -- the D.C. Jail rotunda.
Only one officer was present. For the officer to see defendant at all, the latter's consent was needed. No compulsion to answer any question was, or could be applied. Defendant was free to end the conversation at any time.
Further, the content of the discussion was not that of an interrogation. Its initial stages consisted of defendant's indicating desire to accept some clothes he had previously left at the police station, willingness to release his wife's body for burial, and relief that the jail's other inmates had not connected him with a newspaper story of the finding of his wife's body. Its confessional stage was introduced by a single question or comment by the police officer.
Defendant apparently concedes that if the confessional stage had begun with a statement by defendant -- for example, that he wanted to make sure the lieutenant understood his confession story as accurately or sympathetically as possible -- the confrontation would not have become an interrogation. But, he contends, because the confession was preceded by a prodding or triggering statement by the lieutenant,
the character of the conversation changed to an accusatorial or investigative one. Whether it did is, of course, a matter of judgment. In view of all the circumstances set out above, the Court believes it did not. While the dogmatic statement cannot be made that 'one question never makes an interrogation,' the picture here, in the Court's view, is one of a man willingly desiring to unburden himself
and of the question as an insignificant factor.
Second. If, contrary to this Court's view, the confrontation did become an interrogation, or if its precise character be deemed irrelevant, the question of whether defendant had a constitutional right to have counsel present is a more difficult one.
Three basic principles established by the Supreme Court underlie the present phase of this discussion. The first, enunciated in Powell v. State of Alabama, supra, 287 U.S. at page 69, 53 S. Ct. at page 64, is that a defendant is constitutionally entitled to 'the guiding hand of counsel at every step in the proceedings against him;' the second, stated most clearly by the Court in Chandler v. Fretag, 1954, 348 U.S. 3, 9, 75 S. Ct. 1, 5, 99 L. Ed. 4, is that:
'regardless of whether (defendant) would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified;'
And the third, also reiterated in Chandler v. Fretag, is that if there is a right to counsel at a certain proceeding, 'reasonable opportunity' must be given a defendant to employ and consult with him.
Although these principles were announced in case which dealt with the right to counsel at trial itself, other cases -- under both the Sixth and Fourteenth Amendments, but employing the Sixth's basic guarantee that:
'in all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence' -- have extended the right to several pretrial stages. Principally, it has been held applicable to arraignments at which a plea is required, e.g. House v. Mayo, 1945, 324 U.S. 42, 65 S. Ct. 517, 89 L. Ed. 739; Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633; and five present Justices of the Supreme Court, if their combined opinion would correspond with their separate ones, have indicated that it extends to post-indictment secret interrogations.
Spano v. People of State of New York, 1959, 360 U.S. 315, 324-327, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (concurring opinion of Douglas, J., joined by Black and Brennan, JJ., and concurring opinion of Stewart, J., joined by Douglas and Brennan, JJ.); and Crooker v. State of California, 1958, 357 U.S. 433, 441-448, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (dissenting opinion of Douglas, J., joined by Warren, C.J. and Black and Brennan, JJ.). Beyond this the Court has extended the right to counsel to other pre-trial proceedings only if by its denial a defendant is: 'so prejudiced * * * as to infect his subsequent trial with an absence of 'that fundamental fairness essential to the very concept of justice." Crooker v. State of California, supra, 357 U.S. at page 439, 78 S. Ct. at page 1292.
However, neither these general principles nor their extensions in the cited cases establish, at present, the right to counsel in the situation presented by this case.
First, the Spano concurrence of Mr. Justice Stewart,
which added his assent to some of the principles agreed to by the four dissenting Justices in Crooker, relied for its result on at least three factors not present here, in the opinion of this Court: secrecy, interrogation, and the fact that defendant had been indicted.
Second, the Crooker dissent and the other concurrence in Spano both rely on the secrecy factor, with its concomitant danger of an involuntary confession produced by either the 'third degree' or psychological coercion.
Third, though Crooker and its most apt companion case, Cicenia v. La Gay, 1958, 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2d 1532 were state cases, filtering the Sixth Amendment through the Fourteenth, their majority opinions are still our most authoritative pronouncements in this area.
As indicated, they denied the right to counsel in secret interrogation situations, one of which involved an accused who had been arrested and booked before confessing, the other involving a 'suspect.' While neither involved an individual like the present defendant who had appeared before a committing magistrate for warning as to his rights and not determination of probable cause for arrest, this factor does not appear of great significance, while the absent factors of secrecy and interrogation do so appear. Further, in Cicenia, the Court in dicta indicated that
'even in federal prosecutions this Court has refrained from laying down (a rule that) police could not interrogate a suspect before giving him an opportunity to secure counsel.'
357 U.S. at page 509, 78 S. Ct. at page 1300; while earlier, in United States v. Carignan, 1951, 342 U.S. 36, 72 S. Ct. 97, 96 L. Ed. 48, a federal prosecution in which the Court dealt with a murder charge confession made after interrogation by one validly committed for another crime, it had stated, Id., at page 39, 72 S. Ct. at page 99:
'So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in private of those in lawful custody or the use as evidence of information voluntarily given.'
Finally, there are the decisions and statements of the Court of Appeals. Most explicitly, in Porter v. United States, 1958, 103 U.S.App.D.C. 385, 392, 258 F.2d 685, 692, Mr. Justice Reed,
speaking for a unanimous panel, stated:
'The time that an accused is entitled to counsel for the protection of his rights on criminal charges is from arraignment, that is plea after indictment, to the conclusion of his trial.'
Further, as the Court of Appeals revealed in Lampe v. United States,
two prior per curiam opinions of the Court have summarily overruled a contention that a putative defendant is entitled to counsel at a coroner's inquest.
Whether these cases involved defendants who had been arrested prior to being taken before the coroner's hearing is not clear, and certainly there are other distinguishing factors between such a proceeding and the confrontation involved here, but both share the common pre-indictment characteristic of a proceeding involving a defendant where counsel's absence might disadvantage him. In addition, there are Goldsmith and Jackson II, in which questioning of just this sort was upheld. While it does not appear that the present facet of the 'right to counsel' argument was made in either case, they -- and the langauge they employ -- are weighty matters for this Court to consider.
In view of these decisions, and because of the Court's conclusion that the confession in question was not the product of an interrogation -- so that it cannot be struck down unless the Court is willing to hold that a defendant, after commitment, cannot make a valid confession in the absence of counsel -- and because the Supreme Court, in Spano, supra, 360 U.S. at page 320, 79 S. Ct. at page 1205, deliberately left open the question of whether
'following indictment (a) confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment'
(and therefore the Sixth), the Court has determined that it is required to apply the law as the cases have previously expounded it and leave to higher authorities any extensions of the principles found in those cases.
Especially is the Court reluctant to resolve the unanswered Spano question in defendant's favor because the reasons he advances for extending the right to counsel to include his fact-situation are even fewer than those which underlay the contention in Spano itself, and because he can point to no case in which the specific rationale he advances as justifying the right has been accepted in any majority opinion.
Heretofore, the cases have supported grant of the right to counsel before trial in order to prevent possible third degree interrogations which are, in effect, determinations of guilt, and may result in involuntary confessions,
or to cross-examine on defendant's behalf at formal adversary proceedings,
or to advise of the privilege against self-incrimination to one ignorant of it,
or to give adequate time for trial preparation,
or to take pre-trial steps without which trial itself becomes unduly difficult.
On the other hand, the rationales offered here for right to counsel are essentially prophylactic: that his presence and advice would guard defendant against making incriminatory statements and would prevent police distortion or misrepresentation of what occurs at such interrogations. Although the latter argument has weighty support in Supreme Court dissenting opinions,
it has not yet commended itself to a majority of the court, nor has the former argument.
(5) Defendant's contention that this second confession should have been excluded by the Court because it was the product of a deliberate police attempt to subvert the Rules and the commitment process is more easily rejected.
The Court -- which itself asked Lt. Daly the questions whose answers would have laid the foundation for such a charge -- is satisfied that the lieutenant testified truthfully in stating that he did not go to the jail on the 26th to secure a reaffirmation of the invalid confessions and that he had not spoken to the U.S. Attorney's Office about them before going.
(6) Finally, the applicable test for determining the validity of the second confession being its 'independence' from its invalid predecessors, and that fact turning on whether it occurred 'after time for deliberate reflection,'
Jackson v. United States, supra, 106 U.S.App.D.C. at page 398, 273 F.2d at page 523 the Court is satisfied that, considering all the circumstances, sufficient time did elapse.
First, defendant specifically renounces any claim that he was physically maltreated during the period of 'unlawful' detention. Thus, he did not require a significant time period after commitment to recover his reflective powers, if, indeed, he had ever lost them. Second, following the preliminary hearing and his meeting with Lt. Daly, defendant was permitted two conversations with his friend Miss Holmes. Third, the time period which passed between the preliminary hearing and the second confession was over twenty hours. Fourth, defendant's conversation with the lieutenant prior to his actually making the second confession indicated that he had been reflecting on his crime. All these factors support the Court's previously expressed conclusion that during this period defendant had a resurgence of guilt feelings which prompted his desire to confess anew, and support its present conclusion that such confession came after adequate time for 'deliberate reflection.'
Before concluding, the Court must indicate its reason for permitting receipt at trial of testimony concerning defendant's post-commitment identifications of his wife's body.
As previously indicated in this opinion, the Court refused to allow the Government to utilize as evidence defendant's action during the period of 'unnecessary delay,' in leading police to the underbrush where he had hidden his wife's body, and his statement on arrival at this spot that 'you'll find her over there.' Therefore, the Government at trial proved that the body of Goldie Killough had been found -- thus assisting in the corroboration of defendant's confession -- in a more roundabout way. First, the D.C. Coroner testified that acting on information that a body had been found in a wooded area off Jay Street, N.E. near the Anacostia River, he went to that spot, pronounced the body dead, and had it taken to the morgue. Second, Sterling W. Hackett, a funeral home owner, testified that after receiving a request to remove from the D.C. morgue a body claimed to be that of Goldie Killough, he was taken by a minister-friend of Mrs. Killough to the D.C. Jail on October 26 to obtain from defendant a release of this body. He further testified that defendant signed the release, and also asked when the body could be viewed. Finally, Lt. Daly, as earlier recounted, testified that as part of his October 26 D.C. Jail conversation with defendant -- which preceded that with Mr. Hackett -- defendant had agreed to sign a release for his wife's body.
The short answer to defendant's contention that this testimony should not have been received is that, as previously indicated, the recent Court of Appeals' decision in the Goldsmith case (107 U.S.App.D.C. 305, 277 F.2d 340) clearly holds the 'fruit of the poisonous tree' doctrine inapplicable to cases where the 'poisonous tree' is a violation of Rule 5(a). That ruling being the law binding on this Court, this testimony was properly permitted.