The opinion of the court was delivered by: RICHEY
This matter is before the Court on remand from the Court of Appeals for a hearing on the petitioner's § 2255 motion in order to determine whether statements made by petitioner prior to and immediately following his arrest were voluntary. Alternatively, the Court of Appeals indicated that the District Court could determine whether the petitioner had effectively waived his rights to raise the voluntariness issue with respect to the three statements now in issue on this appeal.
The petitioner, Bennie E. Barnes, ("Barnes"), was tried before a jury in the United States District Court for the District of Columbia, the Honorable June L. Green presiding, in January of 1971, on a three-count indictment charging (1) felony murder, (2) first-degree murder, and (3) arson, all in violation of the District of Columbia Code. Trial after three days resulted in a conviction on all three counts and would have resulted in such, regardless of the issues set forth on this remand. This is so because of the three independent eyewitnesses to the crime. Thus, to allow this petitioner, after ten years, and three appeals, including four § 2255 motions to dream up issues already subsumed by matters previously litigated and affirmed is ridiculous in the extreme. To say that the petitioner is not guilty is to ignore the facts of testimony of Mrs. Ella Mae Barnes and the two other eyewitnesses who had no motive other than to tell the truth. To say that petitioner was denied his constitutional rights is also far fetched and ridiculous because he was afforded able trial counsel, who faced a very difficult task to defend against the charges, as well as one of the very best and ablest appellate counsel, who approved of the choice of defense by trial counsel indirectly under attack here. (2255 Tr. 310).
Assuming arguendo that the first two statements by the petitioner were not voluntary or the product of a rational mind, what about the deceased's dying declaration and the other eyewitnesses to this heinous crime? They prove, even without petitioner's statements, each and every element of petitioner's crimes for which he was convicted beyond a reasonable doubt. It is impossible to discern how this could have turned out otherwise unless the jury believed that the burning of the deceased was an "accident." That point was vigorously argued and rejected. Thus, under our great system of constitutional government, the jury had no choice but to convict, even without defendant's "admissions or involuntary statements."
The undisputed facts of the case are as follows:
Shortly after noon on Saturday, March 8, 1969, petitioner returned home from work. Aside from a trip to the supermarket, he and his wife spent the afternoon at home, resting and drinking whiskey. In the late afternoon, they went shopping with Mrs. Barnes' niece, Dorothy Lee Blizzard, and a male friend, Harley Davis, stopping at least twice to buy liquor. The group returned to Mrs. Blizzard's apartment on 8th Street, N.W., to consume the food and liquor they had purchased. While Mrs. Barnes cooked, Davis and the petitioner went briefly to the Barnes apartment to drink some beer. On their return, Barnes and his wife began to argue, and, after Barnes slapped his wife, Davis forced him from the apartment. Later in the evening, petitioner came back to the Blizzard apartment, apologized to Davis for the earlier dispute, spoke briefly with his wife, and left.
Barnes returned to the Blizzard apartment yet again after midnight and, according to three witnesses, carried a plastic Clorox bottle under his jacket. He sat with Mrs. Barnes on a couch in the kitchen, where eight-year old Wilhelmina Blizzard was also lying. After another argument began between the couple, Mrs. Barnes grabbed the Clorox bottle and smelled the contents. She said it contained gasoline, and threatened to call the police. According to Mrs. Barnes' statement on the day she died,
petitioner then poured the gasoline around her and threw a lighted match on the floor.
Mrs. Barnes, who weighed over 250 pounds, stated her husband held her in the fire; Barnes claimed that he tried to pull her out, but that she slipped and fell. Mrs. Barnes was finally dragged from the fire by Harley Davis, but not until she had received severe burns over 80 percent of her body. She died the following day. Barnes himself received second and third-degree burns on his hands and face, suffered smoke inhalation, and had difficulty seeing for a day after the fire.
The overwhelming evidence adduced at trial included the statement of Mrs. Barnes as set out above, as well as two other witnesses. The first eyewitness to testify was Dorothy Lee Blizzard. She testified as follows:
Q: Could you hear what they (Bennie and the deceased, Mae) were talking about?
Moreover, the Court notes that it was the petitioner who brought the Clorox bottle full of gasoline into the house, as Dorothy Lee Blizzard testified that the bottle was not hers.
The second eyewitness to testify was Wilhelmina Blizzard.
She testified as follows:
A: He had his hand over his jacket like that (indicating) and then he had his hand over his coat and then he came in the back room and then he put down the Clorox bottle on the floor and Mae picked it up and smelled it and she say she going to call the police and tell them you got gasoline around these children and then he snatched it from her.
Q: Bennie snatched it from her?
Q: You said it was a Clorox bottle?
Q: When did you first see the Clorox bottle?
A: When he put it on the floor.
Q: Did you see where it came from?
Q: Out of his coat. Now when Bennie snatched the bottle from her what happened next?
A: And then he had a cigarette in his mouth. He got the match and the flame went up fast.
Q: Fast. Now you said he lit a match?
Q: Did he keep the match in his hand?
And then it went up in flames?
Q: Now, Wilhelmina, what happened then?
A: And then my Aunt Mae, she pushed me out of the fire so I wouldn't get burned.
Q: Did you see anything in the kitchen when you were pushed out of the fire?
A: Mr. Bennie and Mae tussling. They were tussling.
Q: What do you mean by tussling?
A: They were going side by side, moving side by side.
Q: You mean side by side, one beside the other, or do you mean back and forth?
Q: Back and forth. Did you see them any more?
A: And then Mr. Bennie got Mae caught in the fire my aunt. (Trial Tr. 222-3).
On January 20, 1971, after a trial by jury before Judge Green, the petitioner was found guilty of felony murder, second degree murder, and arson. The petitioner was sentenced by Judge Green on January 21, 1971, to a term of life imprisonment for the felony murder conviction. From judgment entered upon his convictions, Barnes perfected a timely appeal on June 22, 1971 based on four grounds. These grounds were (1) whether testimony as to a "confession" were obtained by interrogation of the petitioner prior to the so-called "Miranda" warning was erroneously received in evidence by the District Court, (2) whether it was error in permitting Officer Robert Tropf, Jr. to testify when the officer admitted he had lost his original notes, (3) whether the incriminatory statements of Mrs. Barnes qualify as a dying declaration exception to the hearsay rule, and (4) whether the trial court committed error by instructing the jury to consider the voluntariness of the petitioner's statements. The Court of Appeals affirmed the petitioner's conviction on all four grounds. Barnes I.
The petitioner filed a pro se motion to vacate sentence pursuant to 28 U.S.C. § 2255.
This motion was denied by Judge Green on April 6, 1973. The petitioner then sought to appeal in forma pauperis on July 11, 1973, which was denied by Judge Green on the same date. The Court of Appeals affirmed the denial of leave to proceed on appeal in forma pauperis on December 20, 1973.
On November 3, 1976, the petitioner, through counsel (the Public Defender Service), filed another motion to proceed in forma pauperis and a motion to vacate the sentence. The petitioner alleged, inter alia, that the statements in question were obtained involuntarily. This motion was also denied by Judge Green on November 3, 1976, from which the petitioner perfected a timely appeal.
The Court of Appeals, in a split decision, reversed and remanded, holding, inter alia:
On remand, therefore, the district court may pursue either of two procedures. The court may first determine whether Barnes' statements were voluntary and hence admissible at trial. If so, appellant is entitled to no relief. Alternatively, the court may first determine whether the failure to raise the voluntariness issue either at trial or on appeal should preclude consideration of that claim in this § 2255 petition. If so, the court may deny relief without inquiring into the merits of appellant's contentions.
Barnes II at 894-5, (footnote omitted).
On September 21, 1979, Judge Green again found that the petitioner was entitled to no relief. The petitioner again filed a 2255 motion to vacate the sentence on October 1, 1979, which was denied on December 14, 1979. The petitioner again perfected a timely appeal.
The Court of Appeals reversed and remanded on December 1, 1980, for a de novo hearing on the voluntariness issue. United States v. Barnes, 662 F.2d 777, 213 U.S. App. D.C. 262 (D.C.Cir. 1980); ("Barnes III "). Subsequently, Judge Green recused herself and the case was reassigned to this Court. This Court held a two-day hearing on April 23 and 24, 1981. Moreover, the Court stated that it intended to resolve and issue a ruling on both the question of whether the petitioner's statements were voluntary and the question of whether the involuntariness issue had been waived by trial and appellate counsel.
FINDINGS OF FACT ON VOLUNTARINESS
The first statement petitioner attacks is the statement made to Sergeant Layfield, the first officer on the scene. On direct examination at the initial trial, Sergeant Layfield testified as follows upon responding to a radio broadcast:
Q: As a result of hearing the radio broadcast, what, if anything, did you do?