been in the safe. This convinced the two other men.
Sgt. Chaplin testified that he then arrested defendant, advised him fully of his rights, and that the defendant agreed to record a complete statement. Mr. Ruffin explained that the 45 minutes' delay was caused by difficulty in securing a tape recorder from another building, and in setting it up. The tape recording itself indicates that defendant's rights were repeated to him at the start of the recording.
The hearing in open Court lasted approximately three hours, during which the Court closely observed the demeanor of the witnesses. On the stand, the defendant admitted seven or eight prior larcencies, before coming to Washington. The Court may consider these admissions for the purpose of assessing defendant's credibility, for these offenses involve dishonesty. They also indicate extensive experience with the processes of the criminal law.
Four issues were thus presented to the Court. First, was the defendant the object of custodial interrogation as defined in Miranda so as to render his initial admission prior to any warnings inadmissible in his trial? Second, is the delay that ensued as a result of procuring the tape recorder sufficient to require the exclusion of the second, recorded statement, under the rationale of Mallory? Third, may the United States introduce the apology by defendant to Mr. Johns into evidence at trial? Finally, were all three of these statements voluntary and free of coercion as required by Jackson v. Denno?
The Court is of the opinion that the defendant was not the object of custodial interrogation at the time of his original admission. He had not been arrested; indeed, until the admission, he was being questioned only as part of a general investigation by the University in cooperation with the Metropolitan Police. He had not been requested to go to police headquarters or a precinct station; he was on the premises of his employer, Howard University, whence he had gone to pick up his check. Sgt. Chaplin testified that he believed the defendant's accusation of a guard. Mr. Ruffin testified that he still considered those with the combination to the safe prime suspects. The investigation had not yet focused upon the accused within the meaning of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). There is nothing in the record to indicate that defendant, prior to his initial admission, was deprived of his freedom in any significant way. Indeed, until this time, both Mr. Ruffin and Sgt. Chaplin testified that he was free to go if he desired to do so. There is no need for Miranda warnings to be given to all who choose to cooperate with law enforcement officers in furtherance of a still general investigation. See Hicks v. United States (D.C.Cir. July 7, 1967), 127 U.S. App. D.C. 209, 382 F.2d 158.
Based on the testimony of both Mr. Ruffin and Sgt. Chaplin, as well as a hearing of the tape itself, the Court finds by clear and convincing evidence beyond a reasonable doubt that the defendant made a knowing and intelligent waiver of his right to remain silent, his right to confer with counsel, and his right to terminate the interview at any time. The defendant and his counsel heard the testimony on the basis of which this finding is made and offered no evidence or argument to the contrary at this time.
The Court is also of the opinion that no unreasonable delay followed defendant's arrest so as to render the second, recorded statement inadmissible under the Mallory rule. The Mallory decision proscribes delays in preliminary hearings after arrest, and requires the exclusion of any statement obtained during such delays. That decision does not proscribe all delays; rather only those that are unnecessary and unreasonable. Muschette v. United States, 116 U.S.App.D.C. 239, 322 F.2d 989 (1963), is enlightening in this regard. Where a slight delay is occasioned not by an effort to induce further statements from an accused, but rather, by temporary clerical difficulties in reducing an oral statement to unalterable writing, or mechanical recording, the delay is not unreasonable. In the present case, the defendant was immediately ready to record his statement and apparently remained so. There is no allegation, indeed, the record is quite to the contrary, that any further persuasion was needed or attempted. The Court notes that actual preliminary hearing was delayed till October 3, 1966, but that Sgt. Chaplin was told at the time of booking that no further cases would be accepted by the Court of General Sessions until after the weekend. In addition, the defendant was not interrogated during this time; rather, he was free on bond. For the record, the Court also notes that no challenge is made to the warnings that were given to the accused before his recorded statement. They were comprehensible, complete, and a thorough implementation of the Miranda decision.
The Court further concludes that evidence of the apology and promise made to Mr. Johns by the defendant at the preliminary hearing is admissible if offered at trial. This statement was clearly voluntary, did not result from any questions by Mr. Johns, and did not flow from any official or semi-official responsibilities of Mr. Johns that would cause it to be considered within the purview of Killough v. United States, 119 U.S.App.D.C. 10, 336 F.2d 929 (1964).
Finally, the Court finds all of these statements voluntary and uncoerced within the meaning of Jackson v. Denno. The defendant claimed to have been threatened with the involvement of his wife, and the use of his criminal record. Both Mr. Ruffin and Sgt. Chaplin deny these allegations. The Court carefully observed the demeanor of the witnesses at the hearing, and in view of the testimony elicited, finds the defendant's claim of coercion unworthy of belief. The recorded statement is not that of a man speaking against his will. It is cogent, and sincerely spoken, and although not a factor in determining its admissibility, reveals particulars that no one save a person who had been in the safe could know. Of course, the ultimate decision as to the voluntariness of the confession is for the jury in accordance with the decision of the Court of Appeals in Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966), cert. denied, 386 U.S. 995, 87 S. Ct. 1312, 18 L. Ed. 2d 341.
Therefore, the Court concludes that the initial admission of the defendant, his subsequent recorded confession, and his apology to Mr. Johns will all be admissible at trial.