CARIGNAN v. UNITED STATES, 13 Alaska 95

HEALY, Circuit Judge. Appellant was indicted and convicted of murdering one Laura Showalter in the course of an attempt to commit rape upon her. As required by the pertinent Alaska statute, he was sentenced to death. Numerous grounds for reversal are assigned, four of which, only, are urged.

These are (1) that there was error in admitting a confession of appellant, claimed to have been involuntary and wrongfully procured; (2) that the court erred in declining to permit the accused to take the stand and testify, in the absence of the jury, on matters concerning the admissibility of the confession; (3) that the court was in error in denying the accused’s motion for removal of the cause on the ground of the existence of local passion and prejudice rendering a fair trial impossible; and (4) that the verdict is not supported by-the evidence in that there was no proof that the homicide occurred in the course of an attempted rape.

Following is a

summary of the development of the case as shown by witnesses for the government. About nine o’clock on the evening of July 31, 1949, one Keith, while walking toward his home in the city of Anchorage, observed a man and woman lying in the grass in a small park. He stepped over toward them, whereupon the man raised up and told him to move on. About six o’clock the following morning, while on his way downtown, Keith examined the area where the incident of the previous evening had occurred, and discovered a dead woman in a semi-nude condition lying in the grass. He at once reported the matter to the police.

On September 14 following, in Anchorage, an unknown person assaulted and attempted to rape one Christine Norton. A similarity in the circumstances suggested the likelihood that this and the earlier crime had been committed by the same person. On Frida), September 16, appellant (who will hereafter be referred to as Carignan) was brought to the police station and placed in a lineup with several other suspects, and the Norton woman identified him as her assailant.

On that day the witness Keith, also, was summoned by the police and at least tentatively identified Carignan in a lineup as the man he had seen lying with the woman in the park. Carignan was at once arrested on the charge of assault to rape Christine Norton, was taken before a magistrate, advised of his rights, and apparently given a preliminary hearing on the charge. Thereafter, being held to answer, he remained in custody in the city jail. No complaint was lodged against him in respect of the Showalter murder, and he was at no time taken before •a magistrate for examination or commitment on that charge.

The police questioned him, however, in an endeavor to obtain a statement implicating him in the death of Mrs. Showalter. Being unable to get any information from him, the police, on Saturday morning, September 17, took him to the office of United States Marshal Herring. We here summarize the latter’s testimony in respect of his inquisition, as given before the jury. Herring questioned Carignan about the occurrence of July 31, and the latter asked to see a priest. After about an hour’s conference with the priest Carignan was again asked whether he cared to make a statement and replied that he did.

The Marshal gave him a pad of paper and some pencils, and he was placed alone in a cell in the city jail where he was left to himself over Sunday, the Marshal merely calling on him that day to see how he was getting along. On Monday morning he was again brought to the office .of the Marshal where the latter asked him if he had prepared a statement. He replied that he had but would like to see the priest again before turning it over. The priest was called and remained with Carignan about an hour.

Afterwards Carignan handed the Marshal the writing he had prepared, but this writing covered only the events of the day and early evening of July 31st, pertaining for the most part to a prolonged drinking bout in which Carignan had engaged, with some companions. It made no mention of the subject in which the Marshal was interested.

Carignan said he' was afraid to say more for fear that he wouldn’t be believed and for fear that “his neck would stretch.” After further conversation between the two he was prevailed upon to continue the narrative, and he accordingly added an account of his being with and having violently beaten with his fists the woman in the park. When he handed the completed statement to the Marshal he was told by the latter that he could still destroy it if he wished. Altogether, the whole or the major portions of the Saturday and Monday were consumed in the interchanges described.

Carignan appears to have received kindly treatment throughout the period so far as concerned his bodily needs. Herring testified that he made no. promises in the course of his efforts to extract the confession. He did, however, tell Carignan that there had been no hangings in the Anchorage judicial division in 27 years. There was also some conversation between the two about conditions at McNeil Island and the Marshal informed Carignan of the facilities afforded the inmates there of learning a trade.

In the course of the. several interviews the Marshal told Carignan of his own unhappy childhood in an orphan’s home and likened his early experience with that of Carignan, who had been for a long time a juvenile inmate of an industrial school in the States. It appears, further that the Marshal had on the walls of his office a number of religious pictures, of saints and the like, including one of Jesus. These are said to have been collections made by the officer from the old Orthodox churches of the days of the Russian occupation.

The Marshal showed them to Carignan, asked him to look into the eyes of the pictured Christ, and in effect suggested to him the advisability of his setting himself right with his Maker by confessing the truth concerning his misdoing. At the trial the confession was received over objection of counsel appointed by the court to conduct Carignan’s defense. Counsel here contends that it was inadmissible under the standards set in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and subsequent decisions relating to the admissibility of confessions. He further complains of a violation of Rule 5(

a) and (

b) of the Federal Rules of Criminal Procedure, and contends that the failure to comply with the rule rendered the confession inadmissible. Government counsel insists that the rule has no application to the circumstances of the case. He points to the concession of the appellant that upon the latter’s arrest in the Norton matter he was at once taken before a magistrate and was advised of the nature of the charge against him, of his right to counsel, and kindred rights. He argues that Carnigan was at no time during the period in question under any restraint concerning the death of Mrs.

Showalter, that he was not arrested or being held in connection with the murder, hence there was no necessity for following the procedure prescribed by the Rule. It is urged that since the crime of assault with intent to commit rape is a bailable offense, the accused upon being committed was free to go at any time he might furnish bail. The decisions teach that cases of this type do not yield to uniform treatment, but that each is to be considered in its own setting and in light of its peculiar circumstances.

The mere fact that a confession was made by a person while in the custody of the police does not render it inadmissible. And we assume also, however debatable the point, that where an individual is simultaneously suspected of two crimes and has been arrested and regularly taken before a magistrate and committed in respect of one of them, he is not, while so confined, necessarily immune from questioning on the other absent a repetition of the procedure outlined by the Rule.

The basic question we take to be whether, considering all circumstances, the historic safeguards that a civilized society accords the individual were here substantially- satisfied. On.these preliminary assumptions we turn again to the facts. Appellant was 22 years of age at the time of his trial. He had been inducted into the Army direct from the juvenile detention school where he appears to have spent most of his boyhood, and had ultimately wound up at a military post near Anchorage where he was serving at the time of his arrest. He had no lawyer.

Presumably he had not felt the need of one on the occasion of his being taken before the magistrate on the assault charge. But when the Marshal took him in. hand he was confronted with a situation of a totally different color. He faced then a posture of affairs in which life itself was at stake, and the need of safeguards, more especially of legal counsel, was correspondingly great. It is plain from a study of the record that the Marshal succeeded to an extraordinary degree in winning the confidence and influencing the conduct of this wretched boy.

The ascendancy of the officer was such that he was entitled to take nothing for granted. Having established himself as it were in the role of father confessor, he was obliged to be punctilious in discharging his earthly duty as an officer of the law. We think as judged by standards now prevailing, he failed in the latter respect. The Marshal says that when Carignan was first brought to his office he “warned him of his rights.” The following excerpt from the record indicates the faintness of the warning in light of what was thereafter to ensue: “Q. In what manner did you warn him of his rights?

What did you tell him ? A. I told him he did not have to make a statement at this time, that anything he said could be used against him, and that he was entitled to counsel if he so desired. “Q. Did he discuss with you the question of getting counsel at that time? A. No, sir, he did not. “Q. Did you ever discuss with him the question of getting counsel? A. No, sir.” Considering all thé circumstances, including the youth and inexperience of the subject, we think this was not enough. The occasion ultimately arose in the course of this suction process when the need for more became painfully obvious.

We refer to the Monday when Carignan handed to the Marshal his innocuous writing and expressed the fear that if he said more “his neck would stretch.” Humanly speaking, what the occasion called for was the suggestion that it would be well for the young man to call in a lawyer and obtain advice before taking any irrevocable step. No suggestion of the sort was forthcoming.

Instead, apparently, the suspect’s inquisitor told him that “in the time I had been in this division for 27 years there had been no hangings.” Nobody knew better than the Marshal that if Carignan were to consult a lawyer at that juncture he would infallibly be advised to keep his mouth shut and make no statement of any kind.

Thus the purpose of the officer forbade even the mention of the subject of counsel, whereas a duly constituted magistrate with no inquisitorial axe to grind, mindful of the youth and inexperience of the subject and the extreme gravity of the charge, could be expected to perform his functions fully and fairly. Moreover the opportunity to read, or hear read, a formal complaint charging murder in an attempt to rape would put the accused on notice that hanging was mandatory in the event of a verdict of guilty.

What the court has to decide is whether the circumstances outlined were such as to bring the case within the spirit and intent of Rule 5 and the holding of the McNabb decision, supra, as further expounded in Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. It can not fairly.be said that the confession here obtained did not involve “use by the Government of the fruits of wrongdoing by its officers.” Upshaw v. United States, supra, 335 U.S. at pages 413, 414, 69 S.Ct. at page 172.

It was not impracticable to arraign Carignan before a magistrate on the murder charge of which he was more than suspected, and there was abundant time and opportunity to do that. Nor, keeping in mind the totality of the circumstances, can one say that such procedure, plus the filing of the formal complaint made mandatory by the rule, would have proved a mere idle ceremony. Significantly, Mr. Justice Reed, who was the sole dissenter in the Mc-Nabb case, and who along with three other Justices dissented in Upshaw v.

United States, commented in the latter dissent, 335 U.S. at page 424, 69 S.Ct. at page 177, on the special advantage to the inexperienced of such a hearing, saying: “It must be admitted that a prompt hearing gives an accused an opportunity to obtain a lawyer; to secure from him advice as to maintaining an absolute silence to all questions, no matter how apparently innocuous; * * * and that these privileges are more valuable to the illiterate and inexperienced than to the educated and well-briefed accused.” We hold, therefore, that the court was in error in admitting the confession and the oral statements of the accused which came as its aftermath.

It is clear that without it there might well have been no conviction or that the verdict might have been of murder in a lesser degree. Since a new trial may be ordered in the discretion of the court it will be well to notice briefly the remaining points argued. The granting or denial of the motion for removal of the cause was a matter within the judgment and discretion of the court and we can not say that the discretion was abused. There was sufficient evidence to support a finding that Mrs. Showalter was murdered in the course of an attempt to rape her.

As for the remaining point urged there is no occasion now to rule upon it. The judgment is reversed and the cause remanded for further proceedings.

Section 65 — 4-1, Alaska Compiled Laws Annotated, 1949. “(

a) Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith. “(

b) Statement by the Commissioner. The Commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules.” Rule 5, 18 U.S.C.A. Compare McNabb case on its second trial, McNabb v. United States, 6 Cir., 142 F.2d 904.

In the view of the writer of this opinion something approaching psychological pressure, not umnixed with deceit, contributed to the extraction of the confession. Since the majority are of a contrary opinion this possible aspect has not been given weight in the decision to reverse.