Petitioner, an impoverished Negro of low mentality with a third
or fourth grade education, was arrested after his escape from a
state prison camp. Charlotte city police took him into custody in
connection with a murder investigation, and kept him in a detention
cell for 16 days, where he spoke to no one but the police, who
interrogated him intermittently each day. He finally confessed to
the crime. There is no indication in the record that police advised
him of any of his rights until after his confessions. At his trial
for rape-murder, a written confession and testimony of an oral
confession were introduced in evidence despite counsel's objection
that the confessions were involuntary. Petitioner was found guilty
and sentenced to death. The conviction was affirmed by the North
Carolina Supreme Court. The Federal District Court denied a writ of
habeas corpus, but the Court of Appeals reversed and remanded to
the District Court for an evidentiary hearing on the voluntariness
of the confessions. The District Court, following a hearing, held
the confessions voluntary, and the Court of Appeals affirmed.
Petitioner's confessions were the involuntary end
product of coercive influences, and thus constitutionally
inadmissible in evidence. Pp. 384 U. S.
(a) Had this trial occurred after Miranda v. Arizona,
p. 384 U. S. 436
decision below would be reversed summarily. P. 384 U. S.
(b) As Johnson v. New Jersey, ante,
p. 384 U. S. 719
points out, the nonretroactivity of Miranda
affect a court's duty to consider the voluntariness of statements
under the standards of voluntariness which had begun to evolve long
prior to Miranda
and Escobedo v. Illinois,
378 U. S. 478
384 U. S.
(c) The fact that a defendant was not advised of his right to
remain silent or of his right to counsel at the outset of
interrogation, as is now required by Miranda,
significant in considering the voluntariness of later statements.
Pp. 384 U. S.
(d) It is this Court's duty to examine the entire record and
make an independent determination of the ultimate issue of
voluntariness. Pp. 384 U. S.
Page 384 U. S. 738
(e) The uncontested fact that no one other than the police spoke
to petitioner during his 16 days' detention and interrogation is
significant in determining voluntariness. Pp. 384 U. S.
(f) Evidence of extended interrogation in a coercive atmosphere,
as here, has often resulted in a finding of involuntariness by this
Court, e.g., Fikes v. Alabama, 352 U.
. This Court has never sustained the use of a
confession obtained after such a lengthy period of detention and
interrogation as occurred here. P. 384 U. S.
339 F.2d 770 reversed and remanded.
Opinion of the Court by MR. CHIEF JUSTICE WARREN, announced by
MR. JUSTICE BRENNAN.
Petitioner, Elmer Davis, Jr., was tried before a jury in the
Superior Court of Mecklenburg County, North Carolina, on a charge
of rape-murder. At trial, a written confession and testimony as to
an oral confession were offered in evidence. Defense counsel
objected on the ground that the confessions were involuntarily
given. The trial judge heard testimony on this issue, ruled that
the confessions were made voluntarily, and permitted them to be
introduced in evidence. The jury returned a verdict of guilty
without a recommendation for life imprisonment, and Davis was
sentenced to death.
The conviction was affirmed on appeal by the Supreme Court of
North Carolina, 253 N.C. 86, 116 S.E.2d
, and this Court denied certiorari. 365 U.S. 855. Davis then
sought a writ of habeas corpus in the United States District Court
for the Eastern District of North Carolina. The writ was denied
without an evidentiary hearing on the basis of the state court
record . 196 F.
Page 384 U. S. 739
On appeal, the Court of Appeals for the Fourth Circuit reversed
and remanded the case to the District Court for an evidentiary
hearing on the issue of the voluntariness of Davis' confessions.
310 F.2d 904. A hearing was held in the District Court, following
which the District Judge again held that the confessions were
voluntary. 221 F. Supp. 494. The Court of Appeals for the Fourth
Circuit, after argument and then resubmission en banc, affirmed
with two judges dissenting. 339 F.2d 770. We granted certiorari.
382 U.S. 953.
We are not called upon in this proceeding to pass on the guilt
or innocence of the petitioner of the atrocious crime that was
committed. Nor are we called upon to determine whether the
confessions obtained are true or false. Rogers v.
Richmond, 365 U. S. 534
(1961). The sole issue presented for review is whether the
confessions were voluntarily given or were the result of
overbearing by police authorities. Upon thorough review of the
record, we have concluded that the confessions were not made freely
and voluntarily, but rather that Davis' will was overborne by the
sustained pressures upon him. Therefore, the confessions are
constitutionally inadmissible, and the judgment of the court below
must be reversed.
Had the trial in this case before us come after our decision in
Miranda v. Arizona, 384 U. S. 436
would reverse summarily. Davis was taken into custody by Charlotte
police and interrogated repeatedly over a period of 16 days. There
is no indication in the record that police advised him of any of
his rights until after he had confessed orally on the 16th day.
] This would
Page 384 U. S. 740
be clearly improper under Miranda. Id.
384 U. S.
-479, 384 U. S. 492
Similarly, no waiver of rights could be inferred from this record,
since it shows only that Davis was repeatedly interrogated and that
he denied the alleged offense prior to the time he finally
384 U. S. 476
, 384 U. S.
We have also held today, in Johnson v. New Jersey,
p. 384 U. S. 719
that our decision in Miranda,
delineating procedures to
safeguard the Fifth Amendment privilege against self-incrimination
during in-custody interrogation, is to be applied prospectively
only. Thus, the present case may not be reversed solely on the
ground that warnings were not given, and waiver not shown. As we
pointed out in Johnson,
however, the nonretroactivity of
the decision in Miranda
does not affect the duty of courts
to consider claims that a statement was taken under circumstances
which violate the standards of voluntariness which had begun to
evolve long prior to our decisions in Miranda
Escobedo v. Illinois, 378 U. S. 478
(1964). This Court has undertaken to review the voluntariness of
statements obtained by police in state cases since Brown v.
Mississippi, 297 U. S. 278
(1936). The standard of voluntariness which has evolved in state
cases under the Due Process Clause of the Fourteenth Amendment is
the same general standard which applied in federal prosecutions --
a standard grounded in the policies of the privilege against
self-incrimination. Malloy v. Hogan, 378 U. S.
, 378 U. S. 6
The review of voluntariness in cases in which the trial was held
prior to our decisions in Escobedo
not limited in any manner by these decisions. On the contrary, that
a defendant was not advised of his right to remain silent or of his
right respecting counsel at the outset of interrogation, as is now
required by Miranda,
is a significant factor in
considering the voluntariness of statements later made. This factor
has been recognized in several of our prior decisions
Page 384 U. S. 741
dealing with standards of voluntariness. Haynes v.
Washington, 373 U. S. 503
373 U. S.
-511 (1963); Culombe v. Connecticut,
367 U. S. 568
367 U. S. 610
(1961); Turner v. Pennsylvania, 338 U. S.
, 338 U. S. 64
(1949). See also Gallegos v. Colorado, 370 U. S.
, 370 U. S. 54
370 U. S. 55
(1962). Thus, the fact that Davis was never effectively advised of
his rights gives added weight to the other circumstances described
below which made his confessions involuntary.
As is almost invariably so in cases involving confessions
obtained through unobserved police interrogation, there is a
conflict in the testimony as to the events surrounding the
interrogations. Davis alleged that he was beaten, threatened, and
cursed by police, and that he was told he would get a hot bath and
something to eat as soon as he signed a statement. This was flatly
denied by each officer who testified. [Footnote 2
] Davis further stated that he had repeatedly
asked for a lawyer, and that police refused to allow him to obtain
one. This was also denied. Davis' sister testified at the habeas
corpus hearing that she twice came to the police station and asked
to see him, but that each time police officers told her Davis was
not having visitors. Police officers testified that, on the
contrary, upon learning of Davis' desire to see his sister, they
went to her home to tell her Davis wanted to see her, but she
informed them she was busy with her children. These factual
allegations were resolved against Davis by the District Court, and
we need not review these specific findings here.
It is our duty in this case, however, as in all of our prior
cases dealing with the question whether a confession was
involuntarily given, to examine the entire record
Page 384 U. S. 742
and make an independent determination of the ultimate issue of
voluntariness. E.g., Haynes v. Washington, 373 U.
, 373 U. S.
-516 (1963); Blackburn v. Alabama,
361 U. S. 199
361 U. S. 205
(1960); Ashcraft v. Tennessee, 322 U.
, 322 U. S.
-148 (1944). Wholly apart from the disputed facts, a
statement of the case from facts established in the record, in our
view, leads plainly to the conclusion that the confessions were the
product of a will overborne.
Elmer Davis is an impoverished Negro with a third or fourth
grade education. His level of intelligence is such that it prompted
the comment by the court below, even while deciding against him on
his claim of involuntariness, that there is a moral question
whether a person of Davis' mentality should be executed. Police
first came in contact with Davis while he was a child, when his
mother murdered his father, and thereafter knew him through his
long criminal record, beginning with a prison term he served at the
age of 15 or 16.
In September, 1959, Davis escaped from a state prison camp near
Asheville, North Carolina, where he was serving sentences of 17 to
25 years. On September 20, 1959, Mrs. Foy Belle Cooper was raped
and murdered in the Elmwood Cemetery in the City of Charlotte,
North Carolina. On September 21, police in a neighboring county
arrested Davis in Belmont, 12 miles from Charlotte. He was wearing
civilian clothes and had in his possession women's undergarments
and a billfold with identification papers of one Bishel Buren
Hayes. Hayes testified at trial that his billfold and shoes had
been taken from him while he lay in a drunken sleep near the
Elmwood Cemetery on September 20.
Charlotte police learned of Davis' arrest and contacted the
warden of the state prison to get permission to take Davis into
their custody in connection with the Cooper murder and other
felonies. Having obtained permission,
Page 384 U. S. 743
they took Davis from Belmont authorities and brought him to the
detective headquarters in Charlotte. From the testimony of the
officers, it is beyond dispute that the reason for securing Davis
was their suspicion that he had committed the murder. [Footnote 3
The second and third floors of the detective headquarters
building contain lockup cells used for detention overnight and
occasionally for slightly longer periods. It has no kitchen
facilities for preparing meals. The cell in which Davis was placed
measures 6 by 10 feet, and contains a solid steel bunk with
mattress, a drinking fountain, and a commode. It is located on the
inside of the building, with no view of daylight. It is ventilated
by two exhaust fans located in the ceiling of the top floor of the
building. Despite the fact that a county jail equipped and used for
lengthy detention is located directly across the street from
detective headquarters, Davis was incarcerated in this cell on an
upper floor of the building for the entire period until he
confessed. [Footnote 4
Chief Jesse James testified: "I don't know anybody who has stayed
in the city jail as long as this boy."
When Davis arrived at the detective headquarters, an arrest
sheet was prepared giving various statistics concerning
Page 384 U. S. 744
him. On this arrest sheet was typed the following illuminating
"HOLD FOR HUCKS & FESPERMAN RE -- MRS. COOPER. ESCAPEE FROM
HAYWOOD COUNTY STILL HAS 15 YEARS TO PULL. DO NOT ALLOW ANYONE TO
SEE DAVIS. OR ALLOW HIM TO USE TELEPHONE."
Both at trial and at the habeas corpus hearing the testimony of
police officers on this notation was nearly uniform. Each officer
testified that he did not put that directive on the arrest sheet,
that he did not know who did, and that he never knew of it. The
police captain first testified at trial that there had never been
an order issued in the police department that Davis was not to see
or talk to anybody. He cited as an example the fact that Davis'
sister came to see him (after Davis had confessed). He testified
later in the trial, however:
"I don't know, it is possible I could have ordered this boy to
be held without privilege of communicating with his friends,
relatives, and held without the privilege of using the telephone or
without the privilege of talking to anybody. . . . No, I did not
want him to talk to anybody. For the simple reason he was an
escaped convict, and it is the rules and regulations of the penal
system that if he is a C grade prisoner, he is not permitted to see
anyone alone or write anyone letters, and I was trying to conform
to the state regulations. [Footnote
Page 384 U. S. 745
The District Court found as a fact that, from September 21 until
after he confessed on October 6, neither friend nor relative saw
Davis. It concluded, however, that Davis was not held
incommunicado, because he would have been permitted visitors had
anyone requested to see him. In so finding, the District Court
noted specifically the testimony that police officers contacted
Davis' sister for him. But the court made no mention whatever of
the notation on the arrest sheet or the testimony of the police
The stark wording of the arrest sheet directive remains, as does
Captain McCall's testimony. The denials and evasive testimony of
the other officers cannot wipe this evidence from the record. Even
accepting that police would have allowed a person to see Davis had
anyone actually come, the directive stands unassailably as an
indicium of the purpose of the police in holding Davis. As the
dissenting judges below stated:
"The instruction not to permit anyone access to Davis and not to
allow him to communicate with the outside world can mean only that
it was the determination of his custodians to keep him under
absolute control where they could subject him to questioning at
will in the manner and to the extent they saw fit, until he would
339 F.2d at 780. Moreover, the uncontested fact that no one
other than the police spoke to Davis during the 16 days of
detention and interrogation that preceded his
Page 384 U. S. 746
confessions is significant in the determination of
During the time Davis was held by Charlotte police, he was fed
two sandwiches, described by one officer as "thin" and "dry," twice
a day. This fare was occasionally supplemented with peanuts and
other "stuff" such as cigarettes brought to him by a police
officer. [Footnote 6
District Court found that the food was the same served prisoners
held overnight in the detention jail, and that there was no attempt
by police to weaken Davis by inadequate feeding. The State contends
that "two sandwiches twice a day supplemented by peanuts "and other
stuff" was not such a poor diet, for an idle person doing no work,
as to constitute a violation of due process of law." Brief for
Respondent, p. 7.
We may readily agree that the record does not show any
deliberate attempt to starve Davis, compare Payne v.
Arkansas, 356 U. S. 560
(1958), and that his diet was not below a minimum necessary to
sustain him. Nonetheless, the diet was extremely limited, and may
well have had a significant effect on Davis' physical strength, and
therefore his ability to resist. There is evidence in the record,
not rebutted by the State, that Davis lost 15 pounds during the
period of detention.
From the time Davis was first brought to the overnight lockup in
Charlotte on September 21, 1959, until he confessed on the 16th day
of detention, police officers conducted daily interrogation
sessions with him in a special interrogation room in the building.
] These sessions
Page 384 U. S. 747
lasted "forty-five minutes or an hour, or maybe a little more,"
according to one of the interrogating officers. Captain McCall
testified that he had assigned his entire force of 26 to 29 men to
investigate the case. From this group, Detectives Hucks and
Fesperman had primary responsibility for interrogating Davis. These
officers testified to interrogating him once or twice each day
throughout the 16 days. Three other officers testified that they
conducted several interrogation sessions at the request of Hucks
and Fesperman. Although the officers denied that Davis was
interrogated at night, one testified that the interrogation periods
he directed were held some time prior to 11 p.m. [Footnote 8
] Captain McCall also interrogated
According to each of the officers, no mention of the Cooper
murder was made in any of the interrogations between September 21
and October 3. Between these dates, they interrogated Davis
extensively with respect to the stolen goods in his possession. It
is clear from the record, however, that these interrogations were
directly related to the murder, and were not simply questioning as
to unrelated felonies. The express purpose of this line of
questioning was to break down Davis' alibis as to where he had
obtained the articles. By destroying Davis' contention that he had
taken the items from homes some
Page 384 U. S. 748
distance from Charlotte, Davis could be placed at the scene of
the crime. [Footnote 9
In order to put pressure on Davis with respect to these alibis
police took him from the lockup on October 1 to
Page 384 U. S. 749
have him point out where he had stolen the goods. Davis had told
the officers that he took the items from houses along the railroad
line between Canton and Asheville. To disprove this story, Davis
was aroused at 5 a.m. and driven to Canton. There, his leg shackles
were removed and he walked on the railroad tracks, handcuffed to an
officer, 14 miles to Asheville. When Davis was unable to recognize
any landmark along the way or any house that he had burglarized, an
officer confronted him with the accusation that his story was a
lie. The State points out that Davis was well fed on this day, that
he agreed to make the hike, and contends that it was not so
physically exhausting as to be coercive. The coercive influence was
not, however, simply the physical exertion of the march, but also
the avowed purpose of that trek -- to break down his alibis to the
crime of murder.
On the afternoon of October 3, two officers planned and carried
out a ruse to attempt to get Davis to incriminate himself in some
manner. They engaged Davis in idle conversation for 10 to 20
minutes and then inquired whether he would like to go out for "some
fresh air." They then took Davis from the jail and drove him
Page 384 U. S. 750
the cemetery to the scene of the crime in order to observe his
The purpose of these excursions and of all of the interrogation
sessions was known to Davis. On the day of the drive to the
cemetery, the interrogators shifted tactics and began questioning
Davis specifically about the murder. [Footnote 10
] They asked him if he knew why he was being
held. He stated that he believed it was with respect to the Cooper
murder. Police then pressed him, asking, "Well, did you do it?" He
denied it. The interrogation sessions continued through the next
two days. Davis consistently denied any knowledge of the crime.
On October 6, Detectives Hucks and Fesperman interrogated Davis
for the final time. Lieutenant Sykes, who had known Davis' family,
but who had not taken part in any of the prior interrogation
sessions because he had been away on vacation, asked to sit in.
During this interrogation, after repeated earlier denials of guilt,
Davis refused to answer questions concerning the crime. At about
12:45 p.m., Lieutenant Sykes inquired of Davis if he would like to
talk to any of the officers alone about Mrs. Cooper. Davis said he
would like to talk to Sykes. The others left the room. Lieutenant
Sykes then asked Davis if he had been reading a testament which he
was holding. Davis replied that he had. Sykes asked Davis if he had
been praying. Davis replied that he did not know how to pray, and
agreed he would like Sykes to pray for him. The lieutenant offered
Page 384 U. S. 751
prayer. At that point, as the dissent below aptly put it, the
prayers of the police officer were answered -- Davis confessed. He
was driven to the cemetery and asked to reenact the crime. Police
then brought him back to the station where he repeated the
confession to several of the officers. In the presence of six
officers, a two-page statement of the confession Davis had made was
transcribed. Although based on the information Davis had given
earlier, Captain McCall dictated this statement employing his own
choice of format, wording, and content. He paused periodically to
ask Davis if he agreed with the statement so far. Each time Davis
acquiesced. Davis signed the statement. [Footnote 12
] Captain McCall then contacted the press
and stated, "He finally broke down today." [Footnote 13
The concluding paragraphs of this confession, dictated by the
police, contain, along with the standard disclaimer that the
confession was free and voluntary, a statement that unwittingly
summarizes the coercive effect on Davis of the prolonged period of
detention and interrogation. They read:
"In closing, I want to say this. I have known in my own mind
] you people were holding me for, and all the
time I have been lying in jail, it has been worrying me, and I knew
that sooner or later, I would have to tell you about it."
"I have made this statement freely and voluntarily. Captain
McCall has dictated this statement
Page 384 U. S. 752
in the presence of Detectives W. F. Hucks, E. F. Fesperman, H.
C. Gardner, C. E. Davis, and Detective Lieutenant C. L. Sykes. I am
glad it is over, because I have been going thru a big strain."
The facts established on the record demonstrate that Davis went
through a prolonged period in which substantial coercive influences
were brought to bear upon him to extort the confessions that marked
the culmination of police efforts. Evidence of extended
interrogation in such a coercive atmosphere has often resulted in a
finding of involuntariness by this Court. E.g., Culombe v.
Connecticut, 367 U. S. 568
(1961); Fikes v. Alabama, 352 U.
(1957); Turner v. Pennsylvania,
338 U. S. 62
(1949). We have never sustained the use of a confession obtained
after such a lengthy period of detention and interrogation as was
involved in this case.
The fact that each individual interrogation session was of
relatively short duration does not mitigate the substantial
coercive effect created by repeated interrogation in these
surroundings over 16 days. So far as Davis could have known, the
interrogation in the overnight lockup might still be going on today
had he not confessed. Moreover, as we have noted above, the fact
that police did not directly accuse him of the crime until after a
substantial period of eroding his will to resist by a tangential
line of interrogation did not reduce the coercive influence brought
to bear upon him. Similarly, it is irrelevant to the consideration
of voluntariness that Davis was an escapee from a prison camp. Of
course Davis was not entitled to be released. But this does not
alleviate the coercive effect of his extended detention and
repeated interrogation while isolated from everyone but the police
in the police jail.
In light of all of the factors discussed above, the conclusion
is inevitable -- Davis' confessions were the involuntary end
product of coercive influences and are thus constitutionally
inadmissible in evidence. Accordingly,
Page 384 U. S. 753
the judgment of the Court of Appeals for the Fourth Circuit must
be reversed and the case remanded to the District Court. On remand,
the District Court should enter such orders as are appropriate and
consistent with this opinion, allowing the State a reasonable time
in which to retry petitioner.
Reversed and remanded.
MR. JUSTICE BLACK concurs in the result.
The written confession which Davis subsequently signed contained
a notation that he was advised he did not have to make a statement
and that any statement made could be used for or against him in
court. A police officer testified at trial that he told Davis if
the statement was not the truth, he did not have to sign it.
The State adds in its brief:
"Surely, Davis was not such a sensitive person, after all his
years in prison, that 'cussing' and being called 'Nigger'
constituted any degree of fear or coercion."
Brief for Respondent, p. 8.
Some of the officers testified that they had no idea why Davis
was being brought to Charlotte except as an escapee or in relation
to the stolen goods in his possession. Captain McCall, who was in
charge of the entire detective division of the Charlotte Police,
stated at trial, however:
"He was brought over here for the purpose of being an escaped
convict and as a likely suspect in the murder case. . . . We were
not holding him for the State when he was in Gaston County jail,
but were making an investigation in reference to our murder
At the habeas corpus hearing, he testified: "[H]e was in our
custody primarily because he was a suspect in Mrs. Cooper's case. .
. ." Davis' prior offenses included an assault in the vicinity of
the cemetery, and his home had been nearby. See also
The only exception to this incarceration was a day spent near
Asheville, described infra,
and a night in the Asheville
Transcript of Evidence on Appeal. His testimony at the habeas
corpus hearing was very similar. He first stated somewhat
"Inasmuch as he was an escaped convict, I would have asked them
what was the purpose of placing this 'do not allow anyone to see
Davis or allow him to use the telephone.' To be perfectly honest
with you, why put it in writing when you can do the same thing
verbally. I mean, there is no question about it. The question is
that each individual is allowed due process of law. And if they had
been asked in any way or if I had been asked for anyone to see
Elmer, they would have been given permission. Nobody asked, to my
He later testified:
"I didn't want anybody to talk to him without me knowing it as
he was a prisoner of the State of North Carolina, and he was a C
grade prisoner, and not entitled to visitors without the permission
of the warden."
During the 16-day period, this diet varied only for two meals on
the day he was taken to Asheville and on one other occasion when an
officer brought him two hamburgers.
As the Police Chief explained: "An interrogation room should be
void of all materials so that you can talk to a man in complete
quiet and keep his attention."
After the officer admitted that the sessions might have been up
to 11 p.m., the following question was posed and answered:
"Q. Well, he could have been interrogated by you at night,
"A. I'll say no and I'll say yes."
Another officer testified as follows:
"Q. At the time you interrogated him up in the Police
Department, was it daylight or dark?"
"A. Well, it could have been both, if I remember correctly. I'll
just leave it that way: it could have been both, because that's the
way it is."
Further graphic evidence of the obvious purpose of the police in
detaining and repeatedly interrogating Davis is found in statements
made to the press during this period:
"Detective Capt. W. A. McCall said Davis had not implicated
himself in the Sunday slaying."
"'We're still talking to him,' he said."
Charlotte Observer, Sept. 23, 1959, B-1.
"A Negro man was seen crouching in the bushes at Elmwood
Cemetery shortly before the rape-slaying of an elderly widow there
Sunday afternoon, Charlotte detectives said Wednesday."
"* * * *"
"Charlotte detectives . . . continued interrogating E. J. Davis,
the escapee who was arrested in Belmont Monday night."
"* * * *"
"'We questioned him twice today,' Capt. McCall said Wednesday
night. 'He has given us some conflicting information, and we're
checking all his alibis.'"
"'We'll give him a lie detector test if necessary. But, so far,
we have had no positive results from our interrogation.'"
Charlotte Observer, Sept. 24, 1959, B-1.
"'Everybody . . . everybody is a suspect in this case until we
sign a murder warrant.'"
"Detective Capt. W. A. McCall spoke these words Thursday as
police continued their search for the man who killed and raped a
78-year-old widow in a local graveyard Sunday afternoon."
"* * * *"
"But the main emphasis Thursday continued to be on E. J. Davis,
a 32-year-old Negro prison escapee who was convicted of raping an
elderly woman here in 1949."
"Davis was questioned at length Thursday for the third straight
"'We know he's telling us some lies,' Capt. McCall said. 'We're
checking every alibi and every story he gives us, and some of them
just aren't true.'"
"'We don't have enough facts yet to give him a lie detector
Charlotte Observer, Sept. 25, 1959, B-1.
"Being questioned presently in connection with the slaying of
78-year-old Mrs. Foy Belle Cooper is E. J. Davis, a 32-year-old
Negro escapee who was arrested Monday in Belmont. Davis has a prior
record for rape in 1949."
Charlotte Observer, Sept. 26, 1950, B-1.
"Charlotte detectives concentrated Monday on a 32-year-old
escaped convict in an effort to find who raped and murdered a
78-year-old widow here a week ago."
"* * * *"
"Davis has been questioned closely several times in connection
with the rape-slaying of Mrs. Foy Belle Cooper, 78."
Charlotte Observer, Sept. 29, 1959, 14-A.
"City detectives were still probing a man's alibis for loopholes
Friday in an investigation into the rape-slaying of a 78-year-old
white woman in Charlotte Sept. 20."
"The suspect is an escaped convict, E. J. Davis. . . ."
Charlotte Observer, Oct. 3, 1959, B-1.
Although the District Court found that police did not
interrogate Davis directly about the Cooper case until October 3,
the testimony was not uniform on this point. There is testimony in
the record by police officers that the first interrogation about
the murder was on the Friday before he confessed -- October 2,
253 N.C. 86, 90, 116 S.E.2d
, 367. See also
Charlotte Observer, Cot. 7, 1959,
A-1, Oct. 8, 1959, B-1.
Although the record does not show the tenor of the interrogation
on October 4, it is established that Davis was interrogated every
day, and that he denied any connection with the crime until October
After Davis signed the written confession, Police Chief Jesse
James appeared to question Davis about his treatment. In response
to this questioning, Davis stated that he had been treated all
right. The following morning, a minister who know Davis' family and
had read of his arrest 16 days earlier in the newspaper, appeared
to talk to Davis. He testified that Davis told him his treatment
had been very fine, and that everyone had been courteous and kind
to him. The minister indicated further that he often cooperated
with police in such matters.
Charlotte Observer, Oct. 7, 1959, A-1-2.
MR. JUSTICE CLARK, with whom MR. JUSTICE HARLAN joins,
The rationale of the Court's opinion is that Davis, "an
impoverished Negro with a third or fourth grade education," was
overborne when he gave his confession to the rape-murder.
Davis, a 39-year-old man, admits that he has "been in a lot of
jails." The record indicates that his intelligence was far above
that of a fourth grader. His own testimony at his trial reveals a
highly retentive memory. He described in detail his numerous
arrests, convictions, prison sentences, and escapes over a 15-year
span. Furthermore, during the federal habeas corpus hearing, Davis
showed his awareness of legal technicalities. At one point, the
prosecutor sought to cross-examine Davis as to whether he had "been
tried and convicted of various offenses." Despite the fact that
there was no objection to the question by his lawyer, Davis turned
to the judge and said: "Your Honor, do I have to answer that
question? This is in the past." After some argument about the
admissibility of the evidence, the judge recessed the hearing for
10 minutes to give counsel an opportunity to present legal
authority. Davis' objection was thereafter sustained.
This case goes against the grain of our prior decisions. The
Court first confesses that the rule adopted under the Fifth
Amendment in Miranda v. Arizona, ante,
p. 384 U. S. 436
that an accused must be effectively advised of
Page 384 U. S. 754
his right to counsel before custodial interrogation, is not
retroactive, and therefore does not apply to this case. See
Johnson v. New Jersey, 384 U. S. 719
However, it obtains the same result by reading the Due Process
Clause as requiring that heavy weight must be given the failure of
the State to afford counsel during interrogation as "a significant
factor in considering the voluntariness of statements." Through
this change of pace, Davis' guilty handwriting is stamped a forgery
and his conviction is reversed.
I have found no case dealing with lengthy detention by state
officers which supports reversal here. The Court cites three:
Culombe v. Connecticut, 367 U. S. 568
(1961); Fikes v. Alabama, 352 U.
(1957); and Turner v. Pennsylvania,
338 U. S. 62
(1949), all of which were treated in terms of due process. But
these cases are clearly distinguishable on their facts with respect
to the character of the accused and the circumstances under which
interrogation took place. Culombe was a "mental defective of the
moron class" who had twice been in state mental institutions. He
had no previous criminal record. Fikes was "a schizophrenic and
highly suggestible." He had only one prior conviction -- for
burglary. The interrogation of both these men was more concentrated
than that of Davis. Turner was subjected to continual interrogation
by a relay of officers, falsely told that others had implicated
him, and not permitted to see his family or friends. The prosecutor
admitted that his arraignment was delayed, in violation of a state
statute, until the police could secure a confession. Turner had no
prior criminal record.
On the other hand, Davis had a long criminal record. At the time
of his arrest, he was an escapee from state prison, and so could be
properly held in custody. It is therefore wrong to compare police
conduct here to the detention of an ordinary suspect until he
confesses. Moreover, the sporadic interrogation of Davis can
Page 384 U. S. 755
be denominated as sustained or overbearing pressure. From the
record, it appears that he was simply questioned for about an hour
each day by a couple of detectives. There was no protracted
grilling. Nor did the police officers operate in relays.
The Court makes much of an "arrest sheet" which informed the
jailer that Davis was being held in connection with the murder of
Mrs. Cooper and that he was an escaped convict. This sheet further
directed: "Do not allow anyone to see Davis. Or allow him to use
telephone." No witness was able to identify the author of this
notation. It is true Captain McCall said that he "might" have done
it. But he said that, even so, it was merely a notice to the jailer
that Davis was an escapee and, therefore, not permitted to see or
talk to anyone. On the contrary, however, the record shows that
Davis was not held incommunicado. Upon his request, the police
located his sister the second day after his arrest, informed her
that Davis was in custody, and, on two separate occasions, invited
her to visit him. The officers first called on his sister for the
sole purpose of telling her that Davis wished to see her. A few
days later, they also asked whether she was missing any of the
clothes which were found on Davis. He made no request to see anyone
else. Moreover, it is undenied that visitors from churches and
schools entered the jail with scripture pamphlets. And Davis had
one of these booklets in his hands the day of his confession.
Witnesses testified that Davis told them that his treatment was
"very fine, and that everybody was courteous and kind to him." As
for the hike of some 14 miles along the railroad tracks, Davis
described the purpose of it clearly:
"Well, we had some clothes and things, what I took up there, and
we wanted to go up there and get it straightened out; but the place
where I took the stuff I couldn't locate the place because it was
Page 384 U. S. 756
night, you understand, when I took the clothes and things off
As to the "prayer" of Lieutenant Sykes, there is no testimony
whatever that it was in any way "coercive." Indeed, one witness,
Davis' preacher, quoted him as saying "that he had nothing but
praise for Lieutenant Sykes, especially in the way in which he
dealt with him." At another point, the parson testified: "Elmer
told me that he appreciated the prayer of Lieutenant Sykes." The
Court disregards the fact that Davis had a copy of the scriptures
in his hands when Sykes came into the room, and continued to hold
them as they talked. After Sykes -- a lay preacher -- noticed the
testament, it was only natural that the conversation would turn to
the scriptures and prayer. Sykes asked if Davis wished him to give
a prayer. Davis said that he did, and Sykes prayed with him. The
prayer was entirely unsuggestive.
It is said also that the food was not sufficient. But the
uncontradicted evidence is that Davis never complained about the
meals he received while in custody. *
Davis testified that he lost 15 pounds in jail. But this does not
warrant a finding that he was improperly fed. No one could
contradict or substantiate this contention, because the record does
not show that his weight was taken upon arrest. And Davis was found
to be untruthful in most of his testimony. Indeed, Davis did not
paint his treatment with a black brush until his habeas corpus
hearing, although he testified at length at his trial in the state
Under these circumstances, it appears to me that the trial
judge's findings cannot be found to be clearly erroneous. To the
contrary, they are fully supported by the entire record. I would
* On the morning that Davis left the jail to walk along the
railroad tracks, a police officer asked him "if he was hungry," and
his natural reply at that time of day was "yes." The officer then
gave Davis breakfast.