BOULDEN v. HOLMAN, WARDEN.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Argued February 26, 1969.
Decided April 2, 1969.
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:
William B. Moore, Jr., by appointment of the Court, 393 U.S. 930 , argued the cause and filed a brief for petitioner.
David W. Clark, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was MacDonald Gallion, Attorney General.
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 [394 U.S. 478, 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 .
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 . . . ." 385 F.2d, at 107. 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" 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 4 and have determined that, although the [394 U.S. 478, 481] issue is a relatively close one, the conclusion reached by the District Court and the Court of Appeals was justified.
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 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:
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. [394 U.S. 478, 482] What matters is how they might be understood - or misunderstood - by prospective jurors." 391 U.S., at 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 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 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. 6 Eleven veniremen, however, appear to have been excused for cause simply on the basis of their affirmative [394 U.S. 478, 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:
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, 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, [394 U.S. 478, 485] where the issue that has belatedly been brought to our attention may be properly and fully considered.
MR. JUSTICE FORTAS took no part in the consideration or decision of this case.
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 [394 U.S. 478, 480] 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 5 ] Ala. Code, Tit. 30, 57.
[ Footnote 6 ] "THE COURT: . . . Do you have a fixed opinion against capital or penitentiary punishment?
[ Footnote 7 ] "THE COURT: What is your position on capital punishment or penitentiary punishment?
[ 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 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 re-enactment 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 [394 U.S. 478, 486] of May 1, preceding the interrogation at the jail. 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:
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 (1967), neither of the courts below alluded to, let alone examined, the circumstances or the factual and [394 U.S. 478, 488] legal consequences of the events occurring on the afternoon of May 1, 1964. 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 350 (separate opinion).
[ Footnote 1 ] This appears not only from petitioner's and respondent's oral evidence at the habeas corpus hearing, but also from the transcript of the interrogation of the night of May 1, in which Captain Williams stated:
[ Footnote 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, 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 3 ] In dissenting from the denial of rehearing en banc, Judge Tuttle, joined by Chief Judge Brown, focused on this issue: