condition some 12 years earlier. He opined that his reading level was very poor. (2255 Tr. 113-114). Yet, many of the doctor's comments concerned the petitioner's condition in 1981. (2255 Tr. 114-115). The doctor then undertook to provide his opinion as to the petitioner's psychological state on the morning of the crime, March 9, 1969; the petitioner "was in general in extremely poor intellectual and emotional shape." (2255 Tr. 116).
Dr. Wynne acknowledged that he was "not 100 percent sure" that it was possible for him to draw valid conclusions about the petitioner's condition more than 10 years after the fact. (2255 Tr. 123). Dr. Wynne's test results may not have been the same results that would have been obtained 10 years ago. (2255 Tr. 123-124). Indeed, prolonged institutionalization itself often has an adverse effect on people. (2255 Tr. 125-126).
In the St. Elizabeth's Hospital records of 1970, Mr. Barnes is described as having "mild mental retardation," with an IQ of 67. Dr. Wynne retested Mr. Barnes on February 12, 1981, and found his IQ to be 74. (2255 Tr. 111). Dr. Wynne testified that there was no statistical difference between an IQ of 67 and an IQ of 74, and that Mr. Barnes' intelligence fell between that of "dull normal and mentally retarded." (2255 Tr. 111-113). Further, the Court notes that Mr. Barnes never got beyond the fifth grade. (2255 Tr. 22). The petitioner further points to his lack of experience with the law and his passive personality.
The petitioner also raises the defense of his intoxication at the time of the statements to the three policemen. The petitioner testified at length that he and his friends consumed a quantity of alcohol on that fateful March 9, 1969. According to the petitioner's testimony, eight half-pints of bourbon were purchased between noon and midnight of March 9, 1969. During the course of that day, this bourbon was consumed by Mr. Barnes, Mrs. Dorothy Blizzard, Mr. Harley Davis and Ms. Ella Mae Barnes. In addition, Mr. Barnes stated that he consumed two cans of beer by himself.
(Trial Tr. 424, 426, 443-448, 453, 458). Indeed, based on an elaborate hypothetical, Dr. Wynne, twelve years later, concluded that the petitioner was legally intoxicated and that such intoxication affected his capacity to make a voluntary statement to the police. However, the fact of the matter is that no one really knows how much the petitioner really had to drink.
In presenting the elaborate hypothetical of Dr. Wynne, based on figures supplied by petitioner, the petitioner bypasses one important element. That is the description of the petitioner as provided by the police. Approximately two hours prior to the incident in question, Officer Samuel D. Morrison had a conversation with petitioner concerning the petitioner's desire to have his wife return home. (Trial Tr. 495). Although Officer Morrison did not consider the petitioner to be drunk, he did conclude that the petitioner had been drinking. "We could smell an odor of alcohol on his breath," Officer Morrison testified. (Trial Tr. 496). This was between midnight and 12:30 a.m. on March 9, 1969. (Trial Tr. 494, 497). Sergeant Layfield also testified at the § 2255 hearing that while it was quite possible that Mr. Barnes had been drinking previously, he did not consider the petitioner to be drunk. While the Court notes that the two officers are unable to determine that the petitioner was drunk to a degree of reasonable medical certainty, the Court does find that their experience and observations over a period of years in their work would enable them to give an opinion as to whether one is drunk and this would be entitled to substantial weight and certainly more than Dr. Wynne because they saw and heard what the defendant said and did afterwards, which the doctor did not.
After all, liquor on one's breath does not automatically or even remotely establish intoxication as a matter of law.
The petitioner also introduced the testimony of Dr. Marion Jordan, who was accepted by the Court as an expert in the care, treatment and management of burned individuals. (2255 Tr. 183). Dr. Jordan opined that the defendant had an 8 percent total body surface burn of the second degree which he claimed would have been extremely painful. (2255 Tr. 190). Alcohol in large quantities, however, would have diminished the pain. (2255 Tr. 190-191). He concluded the burns were second degree burns because the infirmary records indicated that the wounds healed without grafting. (2255 Tr. 195). Dr. Jordan also alluded to the possibility that the petitioner had some carbon monoxide poisoning and may have ingested toxic chemicals, based upon certain inferences the doctor made about the conditions during the fire. (2255 Tr. 195-197). A hypothetical person with 8 percent second degree burns and carbon monoxide poisoning and toxic chemical ingestion would commonly be totally hysterical. (2255 Tr. 197-198).
Some people would lose their memory and not recall what they had said at the time but this is not necessarily true for everyone under those circumstances. (2255 Tr. 199-200).
Not surprisingly, the state of mind of one who has witnessed a loved one on fire is one of high anxiety, mixed with guilt if he has been involved in the fire. (2255 Tr. 205). Finally, given a list of hypothetical conditions, including 8 percent second degree burns, substantial intoxication, criminal accusations, arrest, questioning, and smoke inhalation, the doctor concluded that he "would question the rationality of thought in those combinations of significant factors." (2255 Tr. 206-207). However, it was rational to say it was an accident in the face of the facts and the eyewitnesses.
On cross-examination, Dr. Jordan acknowledged that he does not know the defendant and has no direct knowledge of the facts and circumstances of this case. His only knowledge comes from what defense counsel gave him: the D.C. Jail records, a selected portion of the trial transcript, one of the appellate opinions, and Dr. Wynne's report which was prepared twelve years after the fact. (2255 Tr. 208). Dr. Jordan had never seen D.C. Jail infirmary records before and had no way of ascertaining their accuracy or the training and competency of the personnel who created those records. (2255 Tr. 208-209). The 8 percent figure he testified about did not appear in the records but, rather, was his "best-guess." (2255 Tr. 210). Moreover, Dr. Jordan characterized the burns as second degree, even though the records themselves note third-degree burns in several places, thereby disputing the accuracy and reliability of the records upon which he based his testimony. (2255 Tr. 210-212). Of course, Dr. Jordan did not know how Mr. Barnes' burns affected him specifically; nor could he accurately know how much alcohol Barnes had consumed or what his tolerance was. (2255 Tr. 212). Dr. Jordan was not aware of all the facts in this case, including stresses or lack thereof that may have been involved. (2255 Tr. 212-213). He noted an indication in the records that Darvon, an analgesic, had been prescribed for the defendant on an "as-needed" basis, but there is no indication in the records that the drug was, in fact, needed or given to the petitioner. (2255 Tr. 200-201, 213-214).
Concerning Dr. Jordan's hypothesis about carbon monoxide, he explained that it is one of the three components of smoke inhalation. (2255 Tr. 215). The amount of toxic material ingested, however, depends upon the content of the materials on fire, something that Dr. Jordan did not know. Thus, he had no idea how much toxic material was actually in the area. (2255 Tr. 215-216). Moreover, it would have made a difference if windows or doors had been open in the area, and Dr. Jordan did not have this information, either. (2255 Tr. 216). Accordingly, his testimony was "basically an opinion derived from a standard situation of a room and a fire going on inside the room ... without regard to the actual facts in (this) case." (2255 Tr. 216). (Emphasis supplied). It must also be pointed out that Dr. Jordan made no mention as to how long the petitioner was exposed to the smoke.
CONCLUSIONS OF LAW
Based upon the foregoing and the Court's assessment of the demeanor and credibility of the witnesses, the entire record herein, and the applicable law, the Court finds as a fact and as a matter of law that all of the petitioner's statements to the police were voluntary under the totality of the circumstances, and, hence, admissible at trial.
It is a fundamental principle of constitutional law that a confession must be voluntary before it can be admitted in a criminal proceeding to establish guilt of the accused. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921) and Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897). In the case at bar, the Court finds that the three statements in question were the product of a rational intellect and a free will. Blackburn v. Alabama, 361 U.S. 199, 208, 80 S. Ct. 274, 280, 4 L. Ed. 2d 242 (1960). The Court in Blackburn held the statements inadmissible, for there, the defendant was insane and incompetent at the time of the statements. Such a showing has not been made in this case. Indeed, Saint Elizabeth's Hospital found that Mr. Barnes was competent for trial and that there was no causal connection between said defect and the alleged offense.
(July 20, 1970 Saint Elizabeth's letter). The Court finds that the petitioner freely, voluntarily, knowingly and intelligently gave his version of the tragic event to the police immediately after it happened and stuck to his story consistently. Even at the § 2255 hearing before this Court, some twelve years later, the petitioner's testimony was consistent with his statements to the police, thereby adhering to his original defense, i. e., it was an accident.
While none of the conditions of the petitioner cause a per se determination of involuntariness, the Court, in examining the totality of the circumstances, along with the petitioner's physical condition, as well as the applicable case law, finds the petitioner's statements to be voluntary. The petitioner submits that the appropriate test for determining voluntariness is found in Pea v. United States, 130 U.S. App. D.C. 66, 397 F.2d 627, 634 (D.C.Cir.1967):
The makeup of a free man includes his mechanisms for self-preservation, to refrain from speech that may endanger him. If he does speak out his statement is admissible on the reflection of his free will, if his self-preservation mechanism and its impetus to silence is overridden by pressures within his own personality, by his own conscience, religious feelings, sense of duty, etc. But his statement does not reflect his own free will or intellect if his statement is attributable in critical measure to the fact that his self-protective mechanism is negated or overridden by external force or fraud, condition of insanity, the compulsion of drugs.
This is clearly not the situation in the case at bar. There was no external force or fraud exerted on the petitioner.
As indicated above, the petitioner was not insane, either during the commission of the crime or at trial, nor was the petitioner under the influence of drugs. In Pea, the Court found that defendant's statements were inadmissible as involuntary since the "defendant's condition of a concussion, with a bullet lodged in his head, left him coherent but lethargic, not normal and indifferent to protecting himself. Id. at 634. Indeed, every case cited by the petitioner is clearly distinguishable from the case at bar. For example, in Wan v. United States, 266 U.S. 1, 45 S. Ct. 1, 69 L. Ed. 131 (1933), the petitioner was held incommunicado for a week, during which time he became very weak, before the alleged statements were made. The Supreme Court held that a confession obtained by compulsion must be excluded. Id. at 14, 45 S. Ct. at 14. There has been no such showing of coercion in the case at bar.
Petitioner's reliance upon Beecher v. Alabama, 389 U.S. 35, 88 S. Ct. 189, 19 L. Ed. 2d 35 (1964) is equally misplaced. There, the petitioner's statements were held inadmissible, as he was forced to make a confession. The petitioner, already wounded in the leg, was forced to confess to a rape and murder while the local Police Chief and another officer held their guns to his head while presenting the petitioner with the ultimatum of either confessing or being killed. Id. at 36, 88 S. Ct. at 189. Statements made by the petitioner in Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1937) were also suppressed, as the confessions were shown to have been extorted by Officers of the State by torture of the accused. Again, the petitioner, Barnes, has not shown any such coercion at all and as previously established, he was shown to be guilty anyway by independent evidence, to wit, the eyewitness testimony that he committed the crime.
The petitioner asserts that his physical illness aggravated by a lack of medical attention should negate the possibility of the statements being voluntary. The petitioner relies upon Greenwald v. Wisconsin, 390 U.S. 519, 88 S. Ct. 1152, 20 L. Ed. 2d 77 (1968) in which statements were suppressed where the petitioner, who was on medication for high blood pressure, was taken to the police station where he was interrogated from 10:45 p.m. until midnight without being advised of his constitutional rights. The interrogation continued at 8:45 the next morning. The petitioner was not offered food and continued to be without medication for his high blood pressure. Nothing remotely similar happened in this case. In the case at bar, the petitioner, Barnes, was not kept for a long period of time, nor was he on medication. Rather, the petitioner made the statements almost immediately after the incident and they were simultaneously corroborated by statements by the eyewitnesses who stated that the petitioner did indeed start the fire. The Court notes that those eyewitnesses had no interest in hurting the petitioner. Further, the petitioner received appropriate medical attention for his burns within a short period of time.
Indeed, there is no allegation, nor could there be here that such medical attention was unreasonably withheld in order to secure a confession.
The petitioner further claims that his intoxication would negate the voluntariness of his statements. In Gladden v. Unsworth, 261 F. Supp. 897 (D.Oreg.1966), aff'd, 396 F.2d 373 (9th Cir. 1968), statements by the defendant were suppressed due to intoxication. This was because:
The undisputed evidence shows that Unsworth at the time of his arrest was too intoxicated to make a voluntary statement and that the statements he made were "the product of a mind benumbed or confused by alcohol, made at a time when the defendant himself had no understanding or realization of what was going on or what he was saying" and therefore were inadmissible.
Id. at 902. However, in the case at bar, the eyewitness testimony of the officers on the scene was that petitioner Barnes was not intoxicated. Indeed, the petitioner still remembers with amazing clarity the events of the day in question. The defendant was not confused or benumbed, rather he realized what was going on and what he was saying.
While the lack of mental capacity or formal education may in some instances render a confession suspect, that alone is not enough. In Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S. Ct. 1152, 1153, 20 L. Ed. 2d 77 (1968), the defendant, who had a ninth grade education, was kept overnight and denied food and his medication and the Court held the statements involuntary and inadmissible. In Sims v. Georgia, 389 U.S. 404, 407, 88 S. Ct. 523, 525, 19 L. Ed. 2d 634 (1967), the defendant, who had a third grade education with a limited mental capacity, had his confession produced by violence and threats of violence. Once again, the Court held the statements inadmissible as they were involuntary. The defendant in Culombe v. Connecticut, 367 U.S. 568, 609, 81 S. Ct. 1860, 1882, 6 L. Ed. 2d 1037 (1961), was illiterate, with a mental defect, was denied a lawyer and was kept in jail for five days until he confessed. A mentally dull youth was also held incommunicado for three days without counsel, advisor or friend, and with very little food in Payne v. Arkansas, 356 U.S. 560, 563-64, 78 S. Ct. 844, 847-48, 2 L. Ed. 2d 975 (1957). Both of these cases also held the statements inadmissible as the statements were clearly involuntary. However, despite petitioner Barnes' alleged low intelligence, the Court does not find any legally or factually sufficient coercion that was prevalent directly or indirectly in this case. Indeed, in the first and third statements, the petitioner stated that it was an accident and the third was completely spontaneous.
The fact that the petitioner saw his wife immediately after the fire is likewise not enough to taint the voluntariness of his statements. This situation is distinguishable from Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964), for in Boles, the police took the defendant inside the store to view the badly mutilated body of the victim. In the case at bar, Sergeant Layfield merely took the petitioner to the scene of the fire without knowing anything that happened, to turn Barnes over to the other officers. Further, Mrs. Barnes was still alive at the time the petitioner saw her. The Court finds that the police did not attempt to trick the petitioner in any way, nor is such even alleged here. See United States ex rel. Delle Rose v. LaVallee, 342 F. Supp. 567, 575 (S.D.N.Y.1972).
Accordingly, based on the totality of the circumstances, the Court finds that the three statements of the petitioner in question were completely voluntary, and, thus, properly admissible at trial.
Indeed, this case is the very thing that Judge MacKinnon recently opposed in his very vigorous dissent in United States v. Kearney, 682 F.2d 214 at 226, 220 U.S. App. D.C. 379 (D.C.Cir. 1981) in which he stated:
This case personifies the great abuse of repetitive post conviction § 2255 proceedings that clog the courts and raise unjustified hopes in petitioner that a new trial years down the road from their conviction will leave the government with insufficient witnesses and evidence to obtain a conviction for a most heinous offense.