Reargued November 5, 1969. Second Reargument May 26, 1970.
Hastie, Chief Judge, and McLaughlin and Stahl, Circuit Judges. Hastie, Chief Judge, and McLaughlin, Freedman, Seitz, Aldisert, Stahl, and Adams, Circuit Judges. On Reargument: Hastie, Chief Judge, and McLaughlin, Freedman, Seitz, Aldisert, Adams, and Gibbons, Circuit Judges. Adams, Circuit Judge, dissenting.
For the second time, we are called upon to review the conviction of Murray Dickerson for the murder of a Philadelphia housing project guard in 1958. As before, at issue is the admissibility of a statement given to the police at a time when Dickerson was without legal counsel and incarcerated by order of a committing magistrate. In order to evaluate the assertions of Fifth and Sixth Amendment deprivations, it is necessary to review the history of the extensive legal proceedings which have preceded this appeal.
Dickerson was convicted of murder by a Pennsylvania jury in 1960. He unsuccessfully appealed this conviction to the state supreme court which held in Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962), that the voluntariness vel non of the statement given to the police rested finally with the jury and would not be disturbed on review. This position was reiterated in a subsequent denial of state habeas corpus relief in Commonwealth ex rel. Dickerson v. Rundle, 411 Pa. 651, 192 A.2d 347, cert. den. 375 U.S. 915, 84 S. Ct. 214, 11 L. Ed. 2d 154 (1963).
Resorting to federal habeas action, however, Dickerson was successful in overturning his conviction on two grounds. In United States ex rel. Dickerson v. Rundle, 238 F. Supp. 218 (E.D.Pa.1965), Judge Wood ruled that Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) required a separate hearing on the voluntariness of the statements, and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), rendered the statements inadmissible as a matter of law due to the absence of counsel. It should be emphasized that all these Supreme Court decisions had been announced subsequent to the Pennsylvania state courts' review of the conviction.
On appeal, however, this court rejected the contention that Dickerson's statement was inadmissible "merely because it was given at a time when he was without the assistance of counsel." United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 129 (3 Cir. 1966), cert. den. Dickerson v. Rundle, 386 U.S. 916, 87 S. Ct. 880, 17 L. Ed. 2d 790 (1967). Instead, we remanded the case to the state courts solely for the purpose of conducting a Jackson v. Denno hearing on the issue of voluntariness.
On remand, the state trial court determined that the statement was voluntarily given. By agreement of the parties, this finding was made on the basis of the testimony presented in the federal proceedings before Judge Wood. This holding was affirmed by the Pennsylvania Supreme Court for the third time in Commonwealth v. Dickerson, 428 Pa. 564, 237 A.2d 229 (1968), with Justice Roberts dissenting on the grounds that the police violated the defendant's right to counsel when they obtained a "bringup order" authorizing interrogation without affording or advising the defendant of his right to counsel.
Returning to the federal courts, Dickerson reiterated his arguments on voluntariness and the right-to-counsel. Based on the same record which the state courts had reviewed, the district court concluded that the statement was involuntary. In issuing the writ, the court requested, if an appeal ensued, that we reconsider our prior decision which rejected the Sixth Amendment claim. After argument before a panel and two separate rehearings en banc, we have concluded that the writ should not issue.
The Voluntariness of the Statement
Section 2254(d) of Title 28 provides that in federal habeas corpus applications, state adjudications "shall be presumed to be correct." It is only where "such factual determination is not fairly supported by the record" that a federal court is authorized to reject the state findings. Notwithstanding this admonition, the district court rejected the state finding of voluntariness on the basis of the identical evidence reviewed by the state courts. Having examined this record ourselves, we conclude that the state adjudication is more than fairly supported and should have been accepted by the district court.
The record shows that Dickerson voluntarily surrendered to the police three days after the housing guard was killed. There followed a period of interrogation from 5:20 p.m. to 9:18 p.m. on August 19, 1958. A preliminary hearing was held on the morning of August 20 for Dickerson and a co-suspect, Spencer Broaddus,*fn1 after which both men were held for the grand jury. Within a few hours after the defendants were committed to the county prison, the detective bureau requested and obtained from a state quarter sessions judge a "bring-up order" which authorized removal of the defendants from prison for further police interrogation. A second round of questioning followed from 3:16 p.m. to 9:41 p.m. on August 20, at the conclusion of which Dickerson gave the statement which he attacks as involuntary. The interrogations of both Dickerson and Broaddus were apparently conducted by five police officers who at times employed the "Mutt and Jeff" technique of friendship and hostility. A lie detector test was also administered during the course of the second interrogation, following which the police accused Dickerson of lying. At the time these events transpired, Dickerson was 21 years old with nine years of formal education.
We experience difficulty in equating these circumstances with those in cases such as Cicenia v. Lagay, 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958); Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958); Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1969); Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963) and Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966), relied on by Dickerson to establish his claim of involuntariness. Certainly the facts here in no way approach those in Culombe, where the accused was a "moron or imbecile" who was subjected to five days of interrogation; or Davis, where sixteen days of incommunicado interrogation finally resulted in the extraction of a confession from an illiterate of very low mentality; or Crooker, where the accused was interrogated through the night with no opportunity for sleep; or Spano, where the intervention of a "friend" who was in fact a police officer resulted in a confession after eight hours of continuous interrogation into the middle of the night.
In contrast to these cases, the factual construct here is too frail to overturn the state adjudication that the confession was voluntary. There is nothing in Dickerson's age, intelligence, or background which might indicate any great susceptibility to psychological coercion. And the question of the use of physical force is not even raised. Nowhere is it suggested that ample time for eating, sleeping, or resting was not afforded in the long interim between the two interrogations on August 19 and 20, or even during the interrogations themselves. And although it is true that the police did not give Dickerson what has become known as the Miranda warning, it should be emphasized that the presence of this factor does not justify a finding of coercion absent a convincing factual array. In virtually every case relied upon by Dickerson in support of the involuntariness claim -- Davis, Haynes, Culombe, Spano, Cicenia, and Crooker -- the failure to caution the accused of his rights or an outright refusal to honor a request for counsel was but one factor in a blend of ingredients from which a conclusion of coercion was extracted. We find no such blend here; absent this, the state adjudication of voluntariness should stand.
As noted previously, when this case was last before us we rejected the contention that Dickerson's statement was inadmissible because it was obtained when he was without counsel. In adopting a contrary position, the district court relied on the authority of two decisions: Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). Both these decisions have since been declared non-retroactive in application. Escobedo in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), and Massiah, by this Circuit last year, in United States ex rel. Allison v. New Jersey, 418 F.2d 332 (3 Cir. 1969). Consequently, if Dickerson's 1960 conviction is to be reversed because he was denied the right to counsel, it must be on the basis of some other decisional law.
We stress that we are confronted here with the issue of the retroactive application of certain constitutional principles to an interrogation which occurred in 1958 -- eight years before the Escobedo and Massiah decisions. Were we reviewing an interrogation which post-dated these cases, there is no question that Dickerson's post-preliminary hearing interrogation could not have been effected without at least prior warnings of his constitutional rights. The authority of Escobedo, or Massiah, and the later case of Miranda would dictate such a result. Where the question of retroactivity is concerned, however, different considerations apply. First and foremost, it is essential that we determine by what decisional authority this appeal is governed. Dickerson urges the application of White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963), retroactively applied in Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35, 21 L. Ed. 2d 5 (1968). In White, the Supreme Court held that the Sixth Amendment required the assistance of counsel at a preliminary hearing where a plea of guilty was entered. It is Dickerson's position that the right to counsel recognized in White applies to all judicial proceedings, and in this case required the presence of defense counsel at the time the application for the "bring-up order" was presented to the quarter sessions judge.
The doctrines of White v. Maryland, supra, Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), and Massiah v. United States, supra, are judicially crafted benchmarks which delineate particular phases in criminal proceedings when the right to counsel attaches absolutely under the Sixth Amendment. But this right attaches not so much by the chronology of proceedings or even by the interposition of ancillary judicial proceedings as it does by the accumulation of a circumstantial complex which heightens the probability that there will be violence to the constitutional rights of one whom the authorities are prosecuting. Thus, simply appearing at the preliminary hearing, without being required to testify or plead, is not such a critical ...