Petitioner was arrested for murder on December 6, 1963, and held
incommunicado by police officers for 30 to 48 hours, during which
they sought and finally obtained his confession. Three requests by
petitioner to communicate with the outside world, numerous attempts
by his lawyers to communicate with him or the officer in charge of
him, and the issuance of a writ of habeas corpus by a state court
judge were unavailing. The trial judge found that it was "routine
procedure" for investigating officers not to be disturbed during an
investigation. While thus held, petitioner was subjected by
officers to questioning. Although the trial judge excluded from
evidence an oral confession given on December 7 after petitioner
had "either faint[ed] or pretend[ed] to faint," and a written
confession made shortly thereafter, the judge admitted a written
confession given the next day, December 8, and evidence as to a
partial reenactment of the crime. During that reenactment, as he
had done intermittently while in custody, petitioner disclaimed
guilt. Petitioner was convicted, and the State Supreme Court
affirmed.
Held: In view of the "totality of the circumstances"
and the absence of any "break in the stream of events" insulating
the final events "from the effect of all that went before"
(
Clewis v. Texas, 386 U. S. 707,
386 U. S. 708,
710), the trial judge erred in holding the December 8 confession
and partial reenactment voluntary.
Certiorari granted; 155 Conn. 124, 230 A.2d 573, reversed and
remanded.
PER CURIAM.
Petitioner was convicted of second degree murder and sentenced
to life imprisonment. The Connecticut Supreme
Page 391 U. S. 347
Court affirmed the judgment. 155 Conn. 124, 230 A.2d 573 (1967).
Petitioner seeks a writ of certiorari from this Court. We grant the
writ, and reverse.
On Friday, December 6, 1963, petitioner was arrested on a
coroner's warrant charging him with murder. During that entire day
until 9 p.m., petitioner was subjected to questioning. Sometime
that evening, the officer in charge brought in a revolving disc and
sought to persuade petitioner to look at it and "relax." The trial
judge said that "[the officer] was not completely unaware that this
was a common hypnotic device." The wheel turned for about half an
hour, but petitioner refused to look at it.
The next morning, the questioning resumed and continued
intermittently until about 4 p.m., when petitioner fell forward,
according to the trial judge, "either fainting or pretending to
faint." He was revived and then confessed to the murder, as
hereinafter described, in response to questioning by the officer in
charge.
During the entire period petitioner was in custody, his counsel
had been making determined but unsuccessful efforts to contact him
or the officer in charge of him. On Friday, December 6, there were
19 phone calls to various police offices, including nine to the one
at which petitioner was held. On Saturday, there were five calls,
and on Sunday, there was one.
On Friday, there was a personal visit by one of the lawyers to
the police barracks in Stafford Springs where petitioner lad been
taken that morning. But, at about the same time that counsel
arrived, the officer in charge took petitioner from the barracks
and drove him around, apparently to protect him from what the
officer thought were newspapermen. [
Footnote 1] Counsel made four visits to various barracks
on Saturday.
Page 391 U. S. 348
Each of these attempts was met with disclaimers of knowledge of
the whereabouts of either petitioner or of the officer in charge.
The trial judge found that it was "routine procedure" for
investigating officers not to be disturbed during an investigation.
At about 1 or 1:30 p.m. Saturday, at counsel's request, a superior
court judge issued a writ of habeas corpus. A deputy sheriff was
instructed to serve the writ upon the officer in charge of
petitioner and upon the coroner within half an hour. The sheriff
could not locate the officer or the coroner, although the purpose
of this inquiry was stated to the communications officer at the
Hartford barracks. On Sunday, the sheriff called the Stafford
Springs barracks in search of the officer and received a call
informing him that the officer would be at the superior court at 2
p.m. [
Footnote 2]
Petitioner's first confession, made orally after the "fainting"
incident on the afternoon of Saturday, December 7, the second day
of arrest and interrogation, was excluded from evidence by the
trial judge. The trial judge also excluded petitioner's written
confession made shortly thereafter. The trial judge, however,
admitted a subsequent written confession made on Sunday, December
8, and evidence as to a partial reenactment of the crime which
petitioner staged on that day at the request of the police. During
the course of this partial reenactment, petitioner, as he had done
intermittently during his custody, denied that he committed the
crime. The Connecticut Supreme Court affirmed.
Page 391 U. S. 349
Since the trial in this case began before the decisions of this
Court in
Escobedo v. Illinois, 378 U.
S. 478 (1964), and
Miranda v. Arizona,
384 U. S. 436
(1966), these cases are not controlling.
Johnson v. New
Jersey, 384 U. S. 719
(1966). But they are relevant on the issue of voluntariness.
Davis v. North Carolina, 384 U. S. 737
(1966). In the present case, petitioner's lawyers made numerous
attempts to communicate with petitioner or with the officer in
charge. (
Cf. Escobedo v. Illinois, supra, Miranda v. Arizona,
supra, at
384 U. S. 465,
n. 35.) A writ of habeas corpus issued by a state judge at the
request of petitioner's counsel was fruitless, and petitioner, on
three separate occasions, sought and was denied permission to
communicate with the outside world.
The inference is inescapable that the officers kept petitioner
incommunicado for the 30 to 48 hours during which they sought and
finally obtained his confession.
See Davis v. North Carolina,
supra, at
384 U. S.
745-746;
Haynes v. Washington, 373 U.
S. 503 (1963). Considering the "totality of the
circumstances" (
see Clewis v. Texas, 386 U.
S. 707 (1967)), we conclude that the court erred in
holding that the confession and the partial reenactment were
voluntary. The denial of access to counsel and the outside world
continued throughout, and there was "no break in the stream of
events" from arrest throughout the concededly invalid confessions
of Saturday, December 7, to the confession and reenactment of
Sunday, December 8, "sufficient to insulate" the final events "from
the effect of all that went before."
Clewis v. Texas,
supra, at
386 U. S. 710.
See Beecher v. Alabama, 389 U. S. 35,
389 U. S. 36, n.
2 (1967).
Accordingly, the motion for leave to proceed
in forma
pauperis and the petition for a writ of certiorari are
granted. The judgment below is reversed, and the case
Page 391 U. S. 350
remanded for further proceedings not inconsistent with our
decision herein.
MR JUSTICE WHITE dissents.
[
Footnote 1]
When initially arrested, petitioner had asked to use the
telepilone but was not permitted to do so.
[
Footnote 2]
The trial judge specifically found that the officer in charge
knew petitioner was represented by counsel at the coroner's inquest
just one day before his arrest, and that the officer called one of
petitioner's lawyers on Sunday to inform him that there would be a
presentment at 2 p.m. The trial judge also found that the officer
did not know whether or not counsel were on a retainer basis or had
been engaged only for the inquest.
MR JUSTICE HARLAN, concurring in part and dissenting in
part.
I am unable to agree with the basis on which the Court reverses
petitioner's conviction. The courts of the State of Connecticut
conducted a careful and conscientious review of the "totality of
the circumstances" surrounding petitioner's three confessions. If
the question in this case were simply whether the third confession
was coercively extracted, I would vote to affirm. I cannot join the
Court in what seems to me no more than a substitution of its view
on a close factual question for that of the state courts.
In this case, however, a special element is present. The trial
court ruled that the prosecution had not met its burden of proving
that petitioner's first two confessions were voluntarily made. It
then admitted his third confession. The Connecticut Supreme Court,
affirming, evaluated petitioner's third confession by the rules
that had been applied to the other two: finding that the atmosphere
had changed enough to tip the balance in favor of voluntariness, it
found this confession admissible. I do not think this reflected a
proper approach to the problem of multiple confessions.
A principal reason why a suspect might make a second or third
confession is simply that, having already confessed once or twice,
he might think he has little to lose by repetition. If a first
confession is not shown to be voluntary, I do not think a later
confession that is merely a direct product of the earlier one
should be held to be voluntary. It would be neither conducive to
good police
Page 391 U. S. 351
work, nor fair to a suspect, to allow the erroneous impression
that he has nothing to lose to play the major role in a defendant's
decision to speak a second or third time.
In consequence, when the prosecution seeks to use a confession
uttered after an earlier one not found to be voluntary, it has, in
my view, the burden of proving not only that the later confession
was not itself the product of improper threats or promises or
coercive conditions, but also that it was not directly produced by
the existence of the earlier confession.
See United States v.
Bayer, 331 U. S. 532,
331 U. S.
540-541. Here, the facts as stated by the state courts
fail to satisfy this additional burden. Petitioner's third
confession followed the completion of his inadmissible second
confession by only a few hours.
* In the interval,
he appears to have talked to no one except his jailors and the
coroner. There is no indication that he had any reason to think
that a third confession would increase his peril. Since I would
hold only that the state courts applied the wrong standard in this
case, I would remand for further proceedings, in order to give the
prosecution the opportunity to show that the third confession was
not merely the product of the erroneous impression that the cat was
already out of the bag.
* This Court indicates that the second confession occurred on
Saturday and the third on Sunday. In fact, petitioner completed his
signature on the second confession on Sunday morning and
immediately thereafter agreed to reenact the crime. After the
reenactment, he dictated the third confession and had signed it by
1:50 Sunday afternoon. Although petitioner exhibited sporadic
hesitation, the events of Sunday, as described by the Supreme Court
of Connecticut, form a continuous sequence. The Connecticut courts
rejected the argument that the Sunday completion of the signature
on the Saturday confession was a "voluntary" adoption of that
statement.