State v. Dufour

Joslin, J.,

concurring. I would not quash the indictment, but would grant ¡the defendant a new trial and remit the case to the superior court for further proceedings. I base my conclusion on the fifth amendment to the federal constitution.

Specifically, I find error in the procedure followed by the trial court on the question of the voluntariness of defendant’s confession. Since defendant did not testify, and his father when called as a witness iby the state advantaged himself of his constitutional -right not to incriminate himself, the only testimony as to voluntariness came from the police officers. They testified that defendant’s confession was made approximately five hours after his original detention and at a time when he had not yet been advised that he was under arrest; that his father, who was ill, had been tahen into police custody at the same time that defendant was and that, he was released without charges being preferred against him, but only after defendant had confessed; that defendant was subjected to neither duress nor compulsion; and that the confession contained the *130 “recital that defendant made it “without promises, rewards, threats, or coercion, and with my own free will.” These are the circumstances- attendant upon the making of the confession. When they are examined in their totality, as they must be, Haynes v. State of Washington, 373 U. S. 503 , 83 S.Ct. 1336 , there is at least some question, tenuous as it may be, as to whether defendant’s will had been so overborne as to make his confession inadmissible because coerced.

When the voluntariness of a confession has been put in issue, the practice in this state requires that the trial justice hold a preliminary hearing on that question in the absence of the jury at which he should determine the coercion issue; that thereafter further testimony be presented to- the jury; and that then the issue be submitted to- the jury with proper instructions-. State v. Boswell, 73- R. I. 358; State v. Prescott, 70 R. I. 403; State v. Adams, R. I., 121 A. 418 ; State v. Mariano, 37 R. I. 168; State v. Jacques, 30 R. I. 578. Our opinion in State v. Crough, 89 R. I. 338, is distinguishable. I do not reach the question of whether our procedure meets the federal standards enunciated in Jackson v. Denno, 378 U. S. 368 , 84 S.Ct. 1774 , and followed in Boles v. Stevenson, 379 U. S. 43 , 85 S.Ct. 174 , though whether it does is open to question.

The record here discloses that a preliminary examination was conducted in the absence of the jury at the conclusion of which the trial justice, without making any findings on the coercion issue, ruled in substance that the question of how the confession had been obtained was one of fact for the jury. Thereafter, essentially the same evidence as had been proffered at the preliminary hearing was presented to- the jury. In submitting the- case to the jury, however, the trial justice did not instruct that it was for them to' determine whether defendant’s statement had been freely and voluntarily given according to -law. The *131 procedure followed, in my opinion, was improper not only because the trial justice neglected at the conclusion of the preliminary hearing to mahe any findings of fact on the question of voluntariness, but also because he did not submit that issue to the jury for its determination.

It matters not that defendant neither .requested an instruction as to the voluntariness of the confession nor excepted to- the trial justice’s failure to charge thereon. His failure to- submit that issue to- the jury “made the whole proceeding-a mere pretense of a trial and rendered the conviction * * * wholly void.” Brown v. Mississippi, 297 U. S. 278, 286 . When we -are satisfied that a -defendant’s constitutional rights have been violated in this manner in a criminal case, we are no-t justified in sanctioning those violations 'because- of the defendant’s failure to observe- procedural technicalities. Id. at 287 . Nor should we compel a -defendant because of a rigid adherence to those technicalities to resort to proceedings for .post conviction relief, as he may under Fay v. Noia, 372 U. S. 391 , 83 S.Ct. 822 , in order to -correct the alb-use when it is n-o-w within our power to- -do -so. The conviction cannot stand.

I come now to the reasons advanced by the majority for reversal. It finds reversible error in the denial of defendant’s motion to suppress. I am unable to agree that Escobedo v. State of Illinois, 378 U. S. 478 , 84 S.Ct. 1758 , in the posture in which this case is here, required a suppression of -defendant’s confession or that either G. L. 1956, §9-19-25, or an application of Mapp v. Ohio, 367 U. S. 643 , mandated the trial justice to- grant defendant’s motion -to suppress the evidence obtained as a result -of the search and seizure.

The motion to suppress was -directed not to defendant’s confession, but to- the pro-duct of the search. The record of the pretrial hearing on that motion discloses that the arguments of counsel as well as the decision of the trial justice *132 were concerned solely with defendant’s entitlement to claim the benefits accruing to a victim of an illegal search and seizure. Moreover, the suppression of the confession was not argued or considered there, nor was it briefed or argued here. Such being the case, in my opinion, a determination of “the thrust of Escobedo•” should await a case in which it is at issue.

The majority, however, considers that the question of tire suppression of the confession was 'before the trial court. Without reference to State v. Olivieri, 86 R. I. 211, which it overrules, the majority relying on “the thrust of Escobedo’’ hold that under any circumstances the confession of an accused made while in police custody and after becoming suspect should be suppressed unless prior to the making of the statement he has been given an opportunity to1 consult with counsel and has been advised of his constitutional rights. The implication of the decision is that the “critical stage” at which the right to oounsel attaches occurs when an investigation loses its character as a general inquiry into air unsolved crime and focuses upon a suspect in police custody.

In my opinion the majority unduly extends Escobedo beyond where the highest authority stopped. That decision commences with the supreme court saying:

“The critical question in this case is whether, under the circumstances, the refusal by the police to horror petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of The Assistance of Counsel’ * * (italics mine)

The phrase “under the circumstances” or words of similar import appear elsewhere hr the opinion. Id. at 1761, 1763 and 1766. Such words are not included, much less reiterated, in air opinion without reason. Mr. Justice White in his dissent recognizes their purpose when he says, “Although the opinion purports to be limited to the facts of this case * * Id. at 1767.

*133 The circumstances or facts to’ which the supreme court limited Escobedo are substantially different from those in this case. Escobedo was “a 22-year-old of Mexican extraction with no record of previous experience with the police * * Id. at 1760. Subsequent to his arrest and interrogation for a fatal shooting, he retained counsel and was released on habeas corpus. Several days thereafter he was named by Benedict DiGerlando, later indicted for murder along with Escobedo, as the person who had fired the fatal shots. Thereupon, after again being taken into police custody, Escobedo was advised that he had been so identified by DiGerlando and was urged to admit the crime. During the interrogation following his second arrest, the police testimony was that he “ 'was handcuffed’ in a standing position and that he 'was nervous, he had circles under his eyes and he was upset’ and was 'agitated’ because 'he bad not slept well in over a week.’ ” Id. at 1760.

To the suggestion that he confess guilt, he responded that he wanted to speak to his retained lawyer. The request was several times repeated. Notwithstanding that his attorney was at the place of interrogation and had been denied the opportunity to consult with Escobedo, he was told his lawyer “didn’t want to see” him. Id. at 1760. Indeed, at one point the lawyer and Escobedo “came into each other’s view for a few moments * * Id. at 1760.

In addition, there was testimony that the attorney had been told he would not be allowed to speak to' Escobedo until the police interrogation had been completed. Finally, after Escobedo -made statements implicating himself in the murder, an experienced assistant state’s attorney “ 'took’ petitioner’s [Escobedo’s] statement by asking carefully framed questions apparently designed to assure the admissibility into' evidence of the resulting answers.” Id. at 1761. Moreover, throughout the entire course of the interrogation, Escobedo was not advised of his 'constitutional right to remain silent.

*134 These “circumstances” of Escobedo differentiate it from this case. Here, on the record of the pretrial hearing to •which we are limited on review of the ruling on the motion, we find no history of prior counsel, no request by defendant for counsel, no demand by counsel to consult with client, no' urging of defendant to confess guilt, and no re^-duetion of defendant’s statement to written form by an attorney for the state. Even on the assumption that the suppression of defendant’s confession was before the trial justice, the dissimilarity in circumstances prevents my concurrence with the majority’s view that “the thrust of Escobedo” requires reversal.

The majority also bolds that the film® seized during the search of the father’s automobile should have ¡been suppressed. The decisive question on that issue is whether defendant was a victim of the search and .seizure. The motion to suppress as well as the evidence at the hearing t'hereon do not disclose that defendant either alleged or established a possessory or proprietary interest- in the automobile searched or in the films seized. In- fact, at the pretrial hearing on the motion to -suppress, the defendant testified that when he was confronted 'by the police with the package containing the films and asked whether it was his, the answer was: “I don’t know, what is it?” In these circumstances the rule which generally prevails, absent a controlling statute, is that one not a member of the class for whose benefit the constitutional protection exists is without standing to urge the suppression of that which was seized. Annos. 96 L.Ed. 66 et seq., 50 A.L.R.2d 577 et seq. Contra: People v. Martin, 45 Cal.2d 755 ; Traynor, Mapp v. Ohio At Large In The Fifty States, 1962 Duke L.J. 319 , 335 et seq. This is the rule which the supreme court in Goldstein v. United States, 316 U. S. 114, 121 , said has been adopted by “the federal -courts in numerous cases, and -with unanimity * * and which in Jones v. United States, 362 U. S. 257, 261 , it summarized as follows:

*135 “Ordinarily, then, it is entirely proper to require .of one who seeks to challenge the legality of a search .as the basis for suppressing relevant evidence that he allege, and if the allegation ibe disputed that he establish, that he. himself was the victim of an invasion of privacy. * * * To establish 'standing/ Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched.”

Under this rule, defendant does not qualify as a victim.

The rule, however, 'is not without exception. In Jones v. United States, supra, the prosecution was for violation of the federal narcotics law and the statutory provisions permitted conviction upon proof of possession without more. There, as here, on the motion to suppress the accused neither alleged nor established a possessory interest in the premises searched or in the property seized. His failure so> to do there, as here, wa.s undoubtedly induced by the dilemma with which he was “pinioned.” If he admitted possession on the motion to suppress in order to establish “standing,” then the prosecution might have offered that admission against him at the trial on the merits. That dilemma, the court in Jones observed, had been “pointedly put” by Judge Learned Hand in Connolly v. Medalie, 58 F.2d 629 , at page 630.

“Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.”

■ The supreme court found, however, that “Judge Hand’s dilemma is not inescapable,” id. at 263, and it relaxed the construction usually given to Rule 41(e) of the Federal *136 Rules of Criminal Procedure holding that in oases where proof of possession alone will convict, a motion to suppress may be made during as well as before trial.

Jones v. United States, supra, does noit help this defendant even if under our procedure consideration of the motion to' suppress could have been deferred until conclusion of the state’s case, thereby freeing defendant from his dilemma. In Jones conviction could have 'been obtained solely upon proof of possession; here proof of possession of the obscene films without more was not enough 'to convict. This defendant was charged with possession for the purpose of loan in violation of G. L. 1956, §11-31-1, as amended. Under that charge it was incumbent upon the state to prove that defendant’s intention in possessing the films was for the purpose of lending them. State v. Ephraim, 80 R. I. 321, 326. In the circumstances of this case adherence to Jones does not necessitate a modification of the rule as to “standing.”

Mapp does not change the requirement as to “standing.” That decision malees binding upon the state the constitutional prohibition against convicting an accused “of crime by using testimony or papers obtained from him 'by unreasonable searches and seizures as defined in the Fourth Amendment.” Ker v. California, 374 U. S. 23, 30 . In my opinion, federal standards do not confer on this defendant standing to invoke the guarantee of the fourth amendment.

The majority, however, in addition to finding a violation of defendant’s safeguards under the fourth amendment also grounds its decision on §9-19-25 which provides that:

“In the trial of any action in any court of this state, no evidence shall be admissible where the same shall have been procured by, through or in consequence of any illegal search and seizure as prohibited in section 6 of article 1 of the constitution of the state of Rhode Island.”

That section was enacted prior to the decision in Mapp *137 •and less than two months after our decision in State v. Olynik, 83 R. I. 31. There a majority of this court refused to 'apply in state prosecutions the exclusionary rule then prevailing in the federal courts under Weeks v. United States, 232 U. S. 383 . The .coincidence in time of the decision in Olynik and the enactment of §9-19-25 is clear, if not compelling, indication of a legislative purpose to supply an evidentiary rule which the judiciary had rejected.

J. Joseph Nugent, Attorney General, Stephen F. Mullen,. Special Counsel, for State.

Ralph Rotondo, Arthur M. Merolla, for defendant.

So. viewed, the legislative intent was to remedy what Mr. Justice Condon, now chief justice, in his dissent in Olynik characterized at page 48 as “a massive breach in that bulwark of liberty [sec. 6, art. 1, of the state constitution]” which gave license to “lawless enforcement officers ¡that they may invade any man’s home and rummage among his private papers and possessions * * (italics mine) It was a victim’s right of privacy which was -the subject matter of the legislative concern and not the protection of one not a member of the class entitled to claim the benefits of the constitutional guarantee. I see no reason for extending the benefits of §9-19-25 to those, .such as the defendant, upon whom the legislature did not intend to confer .them.

Roberts, J., concurs in the opinion of Joslin, J.