Rhozier T. Brown, Jr. v. United States of America, John D. Irby v. United States of America, Robert L. Jones v. United States

EDGERTON, Senior Circuit Judge

(dissenting):

The police got statements from Brown and later from Irby which revealed that Whitmire took part in the murder of Page. The Government did not offer these statements in evidence and does not deny that they were inadmissible under the Mallory rule. The principal question in these appeals is whether the court erred in admitting Whitmire’s testimony.

The Government does not contend that it could have learned of Whitmire’s presence and participation without the information illegally obtained from Brown. 1 On the basis of that information the police issued a lookout for Whitmire and on October 21 obtained a warrant for his arrest. 2 Brown informed Whitmire that Brown had confessed and had disclosed the names and addresses of all concerned in the murder, including Whitmire. Whitmire told his wife and they fled to New York and Massachusetts.

Whitmire came back at the request of a woman friend who telephoned him that she was “having difficulties.” He made no effort to contact the police. On October 22 they arrested him in the early afternoon at the woman’s house, told him he was charged with murder, and questioned him, holding him for some five hours without taking him before a commissioner. 3 At first he denied knowledge of the crime, but after further questioning, he not only confessed but agreed to testify for the prosecution. The police then released him. The next day the warrant for his arrest was can-celled. Though a coroner’s jury named him on October 28 as one of those responsible for the murder, he was never charged.

Apparently Whitmire never wavered in his intention to testify for the prosecution. He kept in touch with the police during the period of about a year that elapsed before the trial. As the Government says, “although he never surrendered, he surely accommodated the police in every way.” The Government concedes that its ease rested on the testimony of this accomplice. 'The District Court noted the lack of probative value of other testimony.

This court thinks Whitmire’s testimony did not result from “exploitation of the primary illegality” and therefore was admissible; that the connection between the Mallory violations and Whitmire’s testimony was “attenuated.” To me that connection seems both clear and direct. If so, this testimony should have been excluded as a “fruit of the poisonous tree.”

The principal question in Smith and Bowden v. United States was whether Holman’s testimony should have been excluded because the confessions of Smith and Bowden, which implicated Holman, were obtained in violation of the Mallory rule. When the police first located Hol *320 man he said nothing adverse to Smith and Bowden. It does not appear that he decided to say anything adverse to them until the case was tried five months later. We held that “the relationship between the inadmissible confessions and Holman’s testimony in the District Court months later is so attenuated that there is no rational basis for excluding it.” In explanation we said: “the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.” We recognized by clear implication that this interaction takes time. We said: “ * * * when initially located Holman gave no information adverse to appellants; only after reflection and the interaction of these faculties of human personality did Holman eventually relate to the jury the events of the night of the killing.” Smith and Bowden v. United States, 117 U.S.App.D.C. 1 , 3 & n.2, 324 F.2d 879 , 882 & n.2 (1963) (emphasis added).

The present case is very different. Whitmire tried to avoid arrest and professed innocence when first questioned. His decision to abandon that position, confess, and become a government witness was not made, as Holman’s was, “after reflection.” It was made only a few hours after he was arrested and while he was still in custody. To me it seems clear that Whitmire’s arrest, which resulted directly from the illegally obtained statements of Brown and Irby, led directly to his decision to become a Government witness. When he made this decision he had had no appreciable opportunity, after his arrest, for “reflection” and for “attributes of will, perception, memory and volition [to] interact to determine” how he would testify. That he had ample opportunity afterwards and before the trial seems to me immaterial, since this opportunity did not result in any alteration of the decision he had previously made. 4

Since this case does not seem to me to be within the Smith and Bowden exception to the rule which excludes “fruit of the poisonous tree,” I would apply that rule and reverse. I intimate no opinion about other points in the case.

. It does make this contention with regard to the information afterwards obtained from Irby. But the police first identified Irby himself as a participant in the crime only through Brown’s statement, and whatever knowledge they had of Whitmire before Irby confessed was also a result of Brown’s statement.

. I think it immaterial that after these events, and because of them, many knew of his possible participation in the homicide.

. This was a third Mallory violation.

. Whitmire testified that he made his statement to the police “to clear his conscience.” His testimony that the police made no promises, however improbable it may be, cannot be ignored as incredible,