Petitioner was convicted of first-degree murder and sentenced to
death in accordance with the jury's verdict. After the conviction
was affirmed by the Alabama Supreme Court, petitioner requested
federal habeas corpus relief on the ground that the introduction of
a confession into evidence at his trial (which antedated
Escobedo v. Illinois, 378 U. S. 478, and
Miranda v. Arizona, 384 U. S. 436)
violated his constitutional rights. After a full hearing, the
District Court found the confession voluntary and the Court of
Appeals affirmed. In his brief in this Court, petitioner raised the
question whether the jury that sentenced him to death was selected
in accordance with the principles recently announced in
Witherspoon v. Illinois, 391 U. S. 510.
Held:
1. The lower courts' holding that petitioner's confession was
voluntary is justified. Pp.
394 U. S.
479-481.
2. Since several veniremen were excused for cause apparently
because they voiced general objections to the death penalty, it
appears that the sentence of death cannot constitutionally stand
under
Witherspoon, supra, and the cause is remanded to the
District Court, where this belated issue may be fully considered.
Pp.
394 U. S.
481-484.
385 F.2d 102, vacated and remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the Circuit Court of Morgan
County, Alabama, of first-degree murder, and
Page 394 U. S. 479
was sentenced to death in accordance with the verdict of the
jury. After the Alabama Supreme Court affirmed the conviction, 278
Ala. 437,
179 So. 2d
20, the petitioner instituted this habeas corpus proceeding in
the United States District Court for the Middle District of
Alabama. District Judge Frank M. Johnson Jr., denied relief, 257 F.
Supp. 1013, and the Court of Appeals for the Fifth Circuit
affirmed. 385 F.2d 102,
rehearing denied, 393 F.2d 932,
395 F.2d 169. We granted certiorari.
393 U.
S. 822.
I
Although there was substantial additional evidence of the
petitioner's guilt, his conviction was based in part on a
confession he had made some days after his arrest. His request for
habeas corpus relief rested on a claim that the introduction of
that confession into evidence violated his rights under the
Constitution. [
Footnote 1]
Since his
Page 394 U. S. 480
trial antedated our decisions in
Escobedo v. Illinois,
378 U. S. 478, and
Miranda v. Arizona, 384 U. S. 436,
that claim is essentially a contention that under the
constitutional standards prevailing prior to those decisions, his
confession was made involuntarily.
See Johnson v. New
Jersey, 384 U. S. 719;
Davis v. North Carolina, 384 U. S. 737.
After holding a full hearing regarding the issue and considering
the state court record, the District Court, in an opinion applying
the proper constitutional standards, was unable to conclude that
the petitioner's confession was "other than voluntarily made." The
confession, the court found, "simply was not coerced." 257 F. Supp.
at 1017, 1016. The Court of Appeals, likewise applying appropriate
standards, similarly could "find from the record here no plausible
suggestion that Boulden's will was overborne. . . ." 38. F.2d at
107. [
Footnote 2]
Little purpose would be served by an extensive summation of the
record in the District Court proceedings and in the state trial
court. The question whether a confession was voluntarily made
necessarily turns on the "totality of the circumstances" [
Footnote 3] in any particular case, and
most of the relevant circumstances surrounding the petitioner's
confession are set out in the opinions of the District Court and
the Court of Appeals. Suffice it to say that we have made an
independent study of the entire record, [
Footnote 4] and have determined that, although the
Page 394 U. S. 481
issue is a relatively close one, the conclusion reached by the
District Court and the Court of Appeals was justified.
II
In seeking habeas corpus the petitioner challenged only the
admission of his confession into evidence, and his petition for
certiorari was limited to that claim. In his brief and in oral
argument on the merits, however, he has raised a substantial
additional question: whether the jury that sentenced him to death
was selected in accordance with the principles underlying our
decision last Term in
Witherspoon v. Illinois,
391 U. S. 510.
We held in
Witherspoon that
"a sentence of death cannot be carried out if the jury that
imposed or recommended it was chosen by excluding veniremen for
cause simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against
its infliction."
391 U.S. at
391 U. S. 522.
In the present case, the record indicates that no less than 15
prospective jurors were excluded by the prosecution under an
Alabama statute that provides:
"On the trial for any offense which may be punished capitally, .
. . it is a good cause of challenge by the state that the person
has a fixed opinion against capital . . . punishmen[t]. . . .
[
Footnote 5]"
That statutory standard has been construed by the Alabama
Supreme Court to authorize the exclusion of potential jurors who,
although "opposed to capital punishment, . . . would hang some
men."
Untreinor v. State, 146 Ala. 26, 33, 41 So. 285,
287.
However, as we emphasized in
Witherspoon,
"The critical question . . . is not how the phrases employed in
this area have been construed by courts and commentators.
Page 394 U. S. 482
What matters is how they might be understood -- or misunderstood
-- by prospective jurors."
391 U.S. at
391 U. S. 516,
n. 9. "The most that can be demanded of a venireman in this
regard," we said,
"is that he be willing to
consider all of the penalties
provided by state law, and that he not be irrevocably committed,
before the trial has begun, to vote against the penalty of death
regardless of the facts and circumstances that might emerge in the
course of the proceedings. If the
voir dire testimony in a
given case indicates that veniremen were excluded on any broader
basis than this, the death sentence cannot be carried out. . .
."
Id. at
391 U. S. 522,
n. 21. We made it clear that
"[u]nless a venireman states unambiguously that he would
automatically vote against the imposition of capital punishment no
matter what the trial might reveal, it simply cannot be assumed
that that is his position."
Id. at
391 U. S. 516,
n. 9.
It appears that, at the petitioner's trial two prospective
jurors were excluded only after they had acknowledged that they
would "never" be willing to impose the death penalty. [
Footnote 6] Eleven veniremen, however,
appear to have been excused for cause simply on the basis of their
affirmative
Page 394 U. S. 483
answers to the question whether, in the statutory language, they
had "a fixed opinion against" capital punishment. The following
excerpt from the record is typical of those instances:
"THE COURT: Do you have a fixed opinion against capital
punishment?"
"MR. SEIBERT: Yes, sir."
"MR. HUNDLEY: We challenge."
"THE COURT: Defendant?"
"MR. CHENAULT: No questions."
"THE COURT: Stand aside. You are excused."
Two other veniremen seem to have been excluded merely by virtue
of their statements that they did not "believe in" capital
punishment. [
Footnote 7] Yet it
is entirely possible that
Page 394 U. S. 484
a person who has "a fixed opinion against" or who does not
"believe in" capital punishment might nevertheless be perfectly
able as a juror to abide by existing law -- to follow
conscientiously the instructions of a trial judge and to consider
fairly the imposition of the death sentence in a particular
case.
It appears, therefore, that the sentence of death imposed upon
the petitioner cannot constitutionally stand under
Witherspoon
v. Illinois. We do not, however, finally decide that question
here, for several reasons. First, the
Witherspoon issue
was not raised in the District Court, in the Court of Appeals,
[
Footnote 8] or in the petition
for certiorari filed in this Court. A further hearing directed to
the issue might conceivably modify in some fashion the conclusion
so strongly suggested by the record now before us. Further, it is
not clear whether the petitioner has exhausted his state remedies
with respect to this issue. Finally, in the event it turns out, as
now appears, that relief from this death sentence must be ordered,
a local federal court will be far better equipped than are we to
frame an appropriate decree with due regard to available Alabama
procedures.
Accordingly, the judgment of the Court of Appeals is vacated,
and the case is remanded to the District Court,
Page 394 U. S. 485
where the issue that has belatedly been brought to our attention
may be properly and fully considered.
It is so ordered.
MR. JUSTICE BLACK, while still adhering to his dissent in
Witherspoon v. Illinois, 391 U. S. 510,
391 U. S. 532,
acquiesces in the Court's judgment and opinion.
MR. JUSTICE FORTAS took no part in the consideration or decision
of this case.
[
Footnote 1]
Two confessions were, in fact, obtained, although only the
second was actually introduced into evidence. Both the District
Court and the Court of Appeals properly noted that the second
confession might have been the "end product of the earlier" one, in
that
"the accused [may have been] acutely aware that he had earlier
made admissions against his interest and was, therefore, merely
repeating his ostensibly uneraseable [
sic] words of
confession."
385 F.2d at 106.
See Darwin v. Connecticut,
391 U. S. 346;
Beecher v. Alabama, 389 U. S. 35;
cf. United States v. Bayer, 331 U.
S. 532,
331 U. S. 540.
Consequently, in order to determine whether the second confession
was properly admitted, they passed upon the voluntariness of the
first as well as the second confession. We have considered the
record in like fashion.
There is evidence that even before his two formal confessions
were obtained, the petitioner had, shortly after his arrest,
admitted killing the deceased. The evidence was controverted, both
as to whether the petitioner made any such admission and as to
whether, if he did, the admission was voluntary. It is suggested in
dissent that, because the opinions of the District Court and the
Court of Appeals do not explicitly refer to that evidence, it must
be assumed that those courts did not consider it, and that the
conclusions they reached should therefore not be sustained. We
cannot agree. The petitioner has consistently contended that the
events immediately following his arrest contributed to the
involuntariness of his later confessions, and we are unable to
assume that the evidence referred to was not considered by the
District Court and the Court of Appeals. In any event, our own
decision with respect to the voluntariness issue has been reached
with that evidence fully in mind.
[
Footnote 2]
In affirming the petitioner's conviction, the Alabama Supreme
Court had reached a like conclusion. 278 Ala., at 446-452, 179 So.
2d at 28-34.
[
Footnote 3]
Fikes v. Alabama, 352 U. S. 191,
352 U. S.
197.
[
Footnote 4]
See Spano v. New York, 360 U.
S. 315,
360 U. S.
316.
[
Footnote 5]
Ala.Code, Tit. 30, § 57.
[
Footnote 6]
THE COURT: . . . Do you have a fixed opinion against capital or
penitentiary punishment?
"JOHN L. NELSON raised his hand."
"MR. HUNDLEY: Challenge."
"THE COURT: Do you have a fixed opinion against capital or
penitentiary punishment?"
"MR. NELSON: Capital punishment."
"THE COURT: You think you would never be willing to inflict the
death penalty in any type case?"
"MR. NELSON: Yes, sir."
"MR. HUNDLEY: We challenge."
"THE COURT: Defendant?"
"MR. CHENAULT: No questions."
"THE COURT: Stand aside, Mr. Nelson."
"E. O. MOON raised his hand."
"THE COURT: Do you have a fixed opinion against capital or
penitentiary punishment?"
"MR. MOON: Capital punishment."
"THE COURT: You mean you would never inflict the death penalty
on [
sic] any case?"
"MR. MOON: That's right."
"MR. HUNDLEY: Challenge."
"THE COURT: Defendant?"
"MR. CHENAULT: No questions."
"THE COURT: Stand aside, Mr. Moon."
[
Footnote 7]
"THE COURT: What is your position on capital punishment or
penitentiary punishment?"
"MR. COLLIER: I don't believe in capital punishment."
"THE COURT: State?"
"MR. HUNDLEY: Challenge."
"THE COURT: Any questions, Mr. Chenault?"
"MR. CHENAULT: No questions."
"THE COURT: You are excused. . . ."
"MR. PATTON: . . . and I don't believe in capital
punishment."
"MR. HUNDLEY: I'll challenge Mr. Patton on that answer, on the
ground he doesn't believe in capital punishment."
"THE COURT: Any questions by the defendant?"
"MR. CHENAULT: No questions."
"THE COURT: We . . . will let you stand aside."
As the initial portion of this colloquy and that set out in
footnote 6 indicate, Alabama law also authorizes the exclusion of
any potential juror who has a "fixed opinion against . . .
penitentiary" punishment. Ala.Code, Tit. 30, § 57. Two veniremen
were excused when they merely responded affirmatively to the
disjunctively phrased question whether they had "a fixed opinion
against capital or penitentiary punishment." It is thus not
possible to discern from the record which type of punishment they
objected to, although the more likely assumption would be that it
was capital punishment. We did not in
Witherspoon pass
upon the validity of the "penitentiary" analogue to death
qualification of jurors, and we intimate today no opinion regarding
that question.
[
Footnote 8]
The Court of Appeals' decision was rendered prior to our
decision in
Witherspoon.
MR. JUSTICE HARLAN, whom THE CHIEF JUSTICE and MR. JUSTICE
MARSHALL join, concurring in part and dissenting in part.
I agree that the case must be remanded to the District Court for
a determination of the
Witherspoon question, and I
therefore join in Part II of the Court's opinion. However, I
believe that, on remand, the District Court should also consider an
aspect of petitioner's coerced confession claim which the opinions
in the two courts below completely ignore, and to which this Court
pays only passing attention.
The Court states that "[t]wo confessions were, in fact,
obtained, although only the second was actually introduced into
evidence."
Ante at
394 U. S. 479,
n. 1. The first of these was obtained during several hours of
interrogation in the Limestone County jail on the night of
petitioner's arrest, May 1, 1964. The second was obtained during
petitioner's reenactment of the crime on May 6. The courts below
examined the circumstances in which both confessions were obtained,
and concluded that both were voluntary. In my opinion, this does
not exhaust the coerced confession issue.
As the Court is compelled to recognize, petitioner made
inculpatory statements on not two, but
three different
occasions. The first of these was on the
afternoon
Page 394 U. S. 486
of May 1, preceding the interrogation at the jail. [
Footnote 2/1] On that, afternoon,
petitioner was apprehended by law enforcement officers near the
scene of the crime. According to petitioner, an officer of the
Highway Patrol approached him and asked his name:
"I told him; then he told me to run because he had been wanting
to kill him a nigger a long time. . . . [H]e told me to run, and
then he throwed the rifle up like he was getting ready to shoot
there."
Record Transcript 530-540. Petitioner was taken to the scene of
the crime, where he was placed, in handcuffs, in a police car alone
with Highway Patrol Captain Williams. He was not given any of the
Miranda warnings. [
Footnote
2/2] As petitioner related:
"Captain Williams asked me what had happened, and I started to
tell him; he cussed me and told
Page 394 U. S. 487
me it wasn't. . . . I told Captain Williams I didn't do it, and
he told me that I did . . . and he told me I was lying again. And
he got mad and start cussing. . . . Well, he called me a little
bastard and few more names. . . . Then he told me about if I didn't
confess, that the officers that was wanting to kill me, he wasn't
going to stop them. . . . I told him if he would get me out of
there and wouldn't let them bother me, I would confess."
Later, two other officers got into the back of the car. One of
them "asked me how old I was, and I told him, and he told me I was
old enough to die." Record Transcript 544.
There were about 15 or 20 officers at the scene, some of whom
were armed with rifles and shotguns. Captain Williams testified
that a "pretty good size crowd" was gathering -- "I would say, in
my best judgment, twenty-five or thirty cars . . . and people
milling around out in the road." Record Transcript 647-648. It was
under these circumstances that petitioner first admitted to Captain
Williams that he had committed the crime.
Apparently because of the hostile crowd, petitioner was finally
carried away from the area in a convoy of three cars; he was taken
to a jail in another county as a precautionary measure. Thereafter
he made what the courts have treated as the "first" confession.
The District Court was not, of course, obliged to credit
petitioner's testimony concerning the officers' threats -- some of
which, but by no means all, was controverted by respondent's
witnesses. But the court did not even address itself to the
testimony. Indeed, except for the oblique statement that "[t]here
was no evidence. . . that the protection afforded Boulden on this
occasion was inadequate," 257 F. Supp. 1013, 1014 (1966); 385 F.2d
102, 104 (1067), neither of the courts below alluded to, let alone
examined, the circumstances or the factual and
Page 394 U. S. 488
legal consequences of the events occurring on the afternoon of
May 1, 1964. [
Footnote 2/3]
Without speculating as to the possible explanations for this
disturbing
lacuna in the opinions below, I would broaden
the remand of this case so as to allow the District Court to
consider whether petitioner was subjected to improper coercion on
the afternoon of May 1, and what effect the events of that,
afternoon had on the voluntariness of the confession introduced
into evidence at petitioner's trial.
See Darwin v.
Connecticut, 391 U. S. 346
(1968);
id. at
391 U. S. 350
(separate opinion).
[
Footnote 2/1]
This appears not only from petitioner's and respondent's oral
evidence at he habeas corpus hearing, but also from the transcript
of the interrogation of the night of May 1, in which Captain
Williams stated:
"Billy, now you understand what we are doing, we just want to
talk to you, want you to tell us the truth about everything that
happened today.
Now you know you talked with me today in the
car, and I just want you to repeat it all for Lt. Watts here.
. . ."
Appendix 57. (Emphasis added.)
[
Footnote 2/2]
"The review of voluntariness in cases in which the trial was
held prior to our decisions in
Escobedo and
Miranda is 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. . . . 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."
Davis v. North Carolina, 384 U.
S. 737,
384 U. S.
740-741 (1966).
It may additionally be noted that petitioner in the present case
was a slight, sickly youth, with an I.Q. of 83.
[
Footnote 2/3]
In dissenting from the denial of rehearing en banc, Judge
Tuttle, joined by Chief Judge Brown, focused on this issue:
"It is clear that there was an illegal interrogation and
inculpatory statement obtained from this prisoner immediately
following the shooting and it is clear beyond doubt that, in the
eliciting of the confession subsequently admitted by the State
Court as a valid confession, much stress was placed by the officers
on the fact that Boulden had already confessed under the
circumstances which I find completely impermissible. . . . Here, it
is clear beyond doubt that what has been held to be a legal
confession was obtained by the officers repeatedly calling the
accused's attention to the fact that he had already made
sufficiently damaging statements and that they merely wanted him to
fill in the details."
395 F.2d 169 (1968).